Rethinking Bail: Court Reform or Business as Usual? [1st ed.] 9783030448806, 9783030448813

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Rethinking Bail Court Reform or Business as Usual?

Max Travers · Emma Colvin Isabelle Bartkowiak-Théron Rick Sarre · Andrew Day Christine Bond

Rethinking Bail “In recent years much research on bail has focused upon methods of risk analysis. However, this project takes a more personal and humane approach, based on therapeutic jurisprudence perspectives, by focusing upon people who come before the courts with problems of mental illness, substance abuse, unemployment and homelessness, often in combination. This approach provides an important and useful counter-point to the growing use of algorithms in decision-­ making which may have the effect of de-personalising the process.” —Arie Freiberg “Travers et al.’s new book, Rethinking Bail: Court Reform or Business as Usual? provides a rich narrative account of bail decision-making in Australia. Their observations of 150 bail applications in four states are complemented by ‘shadowing’ of legal practitioners, analysis of court transcripts, and interviews and focus groups with key participants in the bail process, including magistrates, prosecutors, defence lawyers and bail service providers. This ethnographic approach reveals important insights into the operation of bail processes, such as the practitioners’ apparent lack of interest and engagement with reform issues, the sheer volume of materials processed and the resultant acceptance of ‘the possibility of mistakes in a fairly chaotic environment’, and the pressures inherent in a chronically under-resourced system. In addition to reporting on ‘business as usual’, Travers et al. also show the path toward reform, involving the expansion and improved delivery of pretrial services and adoption of a therapeutic jurisprudence approach. This book will be invaluable for researchers, policy-­makers and justice practitioners involved in seeking, opposing, granting, administering, reviewing and understanding bail in Australia and beyond.” —Lorana Bartels, Professor and Program Leader of Criminology, Australian National University, Australia

Max Travers • Emma Colvin Isabelle Bartkowiak-Théron Rick Sarre • Andrew Day Christine Bond

Rethinking Bail Court Reform or Business as Usual?

Max Travers School of Social Sciences University of Tasmania Hobart, TAS, Australia

Emma Colvin Centre for Law and Justice Charles Sturt University Bathurst, NSW, Australia

Isabelle Bartkowiak-Théron Tasmanian Inst Law Enforcement Studies University of Tasmania Hobart, Tasmania, Australia

Rick Sarre School of Law University of South Australia Adelaide, SA, Australia

Andrew Day School of Social and Political Sciences University of Melbourne Melbourne, VIC, Australia

Christine Bond School of Criminology & Criminal Justice Griffith University Mt Gravatt, QLD, Australia

ISBN 978-3-030-44880-6    ISBN 978-3-030-44881-3 (eBook) https://doi.org/10.1007/978-3-030-44881-3 © The Editor(s) (if applicable) and The Author(s) 2020 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Acknowledgements

In 2013, the Tasmanian Institute of Law Enforcement Studies at the University of Tasmania arranged a workshop for practitioners and academics interested in bail reform. This was hardly a national movement in Australia at the time, and nothing substantially has changed today. Nevertheless, it was significant that some senior practitioners, with considerable experience of working in the criminal justice system, felt the issue should receive some attention. The workshop raised issues on why remand rates had increased since the 1980s and how social services could address the needs of defendants with vulnerabilities such as being homeless or having a mental illness. Beyond what was said, there was perhaps a more important underlying message. Although no one had a clear view on what might be the underlying problem or potential solutions, there was something wrong with how the lower courts responded to low-level offending at the pretrial stage. Six years later, we have written this book. We hope that it will interest practitioners and academics in Australia and in other countries interested in bail reform. With the help of supporters in government bureaucracies and practitioners across a variety of agencies, we have been able to pursue an empirical project based on observing bail applications and interviewing practitioners. Like previous researchers, we draw on this evidence to promote initiatives that make it easier to obtain bail, while recognizing that any evidence may never allay concerns about offences committed on bail. v

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We have developed and conducted this project as a research group. Although we have similar views about criminal justice policy, we come from different academic disciplines and, in some cases, have a philosophical commitment to particular research methods. One of the strengths and weaknesses of criminology as an applied subject is that all this gets mixed together, although at times we will be approaching the same topic or problem from different theoretical perspectives. We are particularly grateful to senior magistrates in Tasmania, South Australia, Victoria and New South Wales for facilitating this project in their own courts. This does not mean that these practitioners necessarily approve or endorse the findings, or have always been able to help. Nevertheless, it is pleasing that they are open to considering reform. The ability of universities to make constructive criticisms of government agencies through independent research has arguably been reduced in recent years, simply because there is less funding from research councils. It remains important in a democracy that institutions such as the courts are willing to reflect on practices such as bail decision-making, and that the public should participate in these discussions. We would also like to thank a variety of agencies, including police organizations in the four states. Any help is greatly appreciated and has made possible this study. We would also like to thank our universities and the Criminology Research Council for supporting this project. We would like to acknowledge that the transcripts for applications 1, 6, 7 and 8 were previously published in “Business as usual? Bail decision making and ‘micro politics’ in an Australian magistrates court”. Law and Social Inquiry. Vol. 42, No. 2, pp. 325–346 (2017), and the transcripts for applications 4 and 5b in “Craft skills and legal rules: How Australian magistrates make decisions”. Ethnographic Studies, pp. 147–166 (2019). We hope that this book results in discussion and reflection about bail decision-making and court reform.

Contents

1 Introduction  1 2 Bail Reform in Context 21 3 Researching Bail Practices 45 4 Professional Perspectives 65 5 Bail Decision-Making 89 6 Defendants with Vulnerabilities115 7 Risk Profiles147 8 Pretrial Services171 9 The Prospects for Court Reform195 10 Conclusion: Rethinking Bail217

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R  eferences225 Index237

List of Tables

Table 4.1 Acceptance rate Table 4.2 Breaches of bail Table 6.1 Bail applicants with vulnerabilities

68 69 120

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1 Introduction

A number of tragic events in Australia have transformed bail from a rather dry and technical subject only of interest to criminal lawyers to a matter for public concern and even debate. There were three events that received a high level of media reporting. The first in 2012 was the murder in Melbourne of Jill Meagher by Adrian Bayley, a convicted rapist released from prison on parole (Ford 2017). This is technically bail in the Australian criminal justice system. Even though there are significant differences from pretrial bail, there are similar considerations in determining if a person with a history of offending poses a risk to the public. The second in 2014 was the Lindt café siege in Sydney. Man Haron Monis, who is now often described as a “deranged mad man”, took hostages and when the police eventually stormed the building killed the manager Tori Johnson. A customer Katrina Dawson was killed by a ricochet from a police bullet (Australian Asssociated Press 2017). Mons Monis was on bail, even though he was charged with a serious offence. This resulted in a great deal of media interest and commentary. The third event involved a person with a history of mental illness, Dimitrious Gargasoulas, who ran down people in the main shopping street of Melbourne, injuring thirty people and killing six, including a baby (McKay and Zervos 2017). Gargasoulas had been granted bail, even though he had a record of violent offending. © The Author(s) 2020 M. Travers et al., Rethinking Bail, https://doi.org/10.1007/978-3-030-44881-3_1

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Although each of these events was newsworthy, the murder of Jill Meagher probably only became widely known because she worked in ABC radio. There have been other cases in which bail decisions have led to murders in Victoria and New South Wales that have received less attention, or were only local news. In Tasmania, there have been recent cases that were not seen as newsworthy outside this small island state. Jodi Eaton was killed by her partner while on bail. He had been charged with an offence of domestic violence (Burgess 2015). Each of these events resulted in calls to strengthen the bail laws, and in some cases they resulted in legislation and procedural changes. In response to Jill Meagher’s death, an inquiry by former High Court Justice Ian Callinan (2013) recommended higher penalties for breaching parole, and asked parole boards to take greater care. This has resulted in more prisoners being refused parole. The State Coroner in New South Wales (2017) made recommendations on bail decisions and procedures in the Monis case. Following the Bourke Street deaths, Justice Paul Coghlan (2017) was asked to conduct a review about bail practices in Victoria. In Tasmania, there have been proposals to make it more difficult to obtain bail for certain offences, by adapting legislation that already exists in other states. Although these tragic events understandably receive a lot of attention, at least for a limited period, it would be a mistake to see the problem of bail entirely in terms of soft laws or errors in decision-making. Two other issues are important that are rarely reported or discussed in the media, or acknowledged in legislation. The first is that there has been a dramatic increase in the remand population, as well as the prison population more generally, in the last ten years. In New South Wales, the proportion of unsentenced prisoners in relation to the overall prison population in 2008 was 23.4%, and today it is 33.5%. In Victoria, the proportion of unsentenced prisoners in relation to the overall prison population in 2008 was 19.2%, and today it is 36.3%.1 Victoria has experienced a  There are different ways of recording the remand rate, including the number per 100,000 population remanded and the mean amount of time remanded in custody in each state. This book uses the proportion of remand prisoners as a proportion of the adult prison population as a measure. This is the main measure employed by the Australian Bureau of Statistics, and is adequate for most purposes. 1

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­ articularly dramatic rise in the last year: there was a 22% increase in the p proportion of unsentenced prisoners in relation to the overall prison population. This is concerning since offending has neither increased nor fallen during the last ten years.2 Although it is hard to estimate given the statistical information available, a significant proportion of this increase has come from more defendants being refused bail.3 We will be arguing that this explosion in incarceration should not be underestimated by governments that are seeking to reduce expenditure, and should not be taken lightly by practitioners and the public, or seen as someone else’s problem. The second is that there are debates within the criminal justice system about the extent to which offenders should be helped with welfare services at the pretrial stage. A series of initiatives inside courts have, at the very least, demonstrated that there are alternatives to “business as usual” even if they largely remain pilot schemes or cannot secure funding to operate at scale to influence the remand rate. These movements challenge the intellectual justification for existing practices. They have also resulted in a different role for the magistrate, in providing social support to defendants in different ways, even though traditionalists remain sceptical or hostile. One policy initiative, influenced by these ideas, is being implemented in the State of Victoria through the Court Integrated Services Program (CISP). A substantial number of defendants are being given social support and supervision, and asked or even mandated to attend rehabilitative programs, instead of being remanded to prison. In this introductory chapter, we will supply more substance to these observations and arguments. We also explain how we came to write this book, and outline the objectives and content of each chapter.

 Crime statistics collected by police organizations in each State are collated by the Australian Bureau of Statistics. According to the 2018 report, the number of robberies fell by 58% between 2000 and 2017. 3  The extent to which a rise in imprisonment is caused by bail decisions is difficult to calculate. It is possible that most defendants remanded in custody receive sentences of imprisonment, and that these are reduced by time spent on remand. Studies in the USA that have looked at this issue closely have estimated that bail refusals lead to a 10% increase in the overall prison population (e.g., Oleson et al. 2016). In Australia, there has been a steady rise in the remand rate for twenty years, and a rapid rise in the last ten years. It seems fair to conclude that this has contributed to a “significant” proportion of an increase in imprisonment. 2

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Bail Controversies In Australia, and in other countries, public debate and discussion on bail tends to revolve around whether bail laws are sufficiently restrictive in managing the risks from potentially dangerous or disruptive defendants. In fact, the inquiries following tragic public events often conclude that the laws are already tough enough, and that there was some organizational problem that resulted in a poor decision, or even that this could not have been avoided (Callinan 2013; Coghlan 2017). This will make sense to lawyers who know that such “mistakes” happen all the time (just as patients regularly die through mistakes in hospitals or human services fail to protect vulnerable children). To come to an assessment, it is however important to understand the practical circumstances of the work. In the case of bail tragedies, this is possible to some extent because there is normally a public inquiry that describes what took place, drawing on the testimony of practitioners, and makes recommendations. In the Jill Meagher case, the offender, Bayley, was given parole after serving a sentence of eight years for sexually assaulting five sex workers. Bayley’s parole had continued even though he had breached the conditions in a violent attack seven months previously on a man outside a pub. Although the full information on how the decision was made is not available, reporters commented on “prison psychologists’ failure to detect that Bayley was … conning them that he had reformed” (Dowsley et  al. 2015). A forensic psychologist commented that serious sexual offenders, such as Bayley, learn the correct answers in tests, so more weight should be placed on the “matrix” of circumstances (Marshall and Moulden 2001). In this case, serious sex offences had also been committed while he was supervised on parole but he was not identified as the offender through DNA evidence until after the publicity following the Meagher murder (this is described in the inquiry as one instance of “communication difficulties”). It is not clear how strengthening the law would in itself have prevented Bayley from obtaining parole. One result was that the Victorian government invested greater resources in establishing a full-time parole board with greater resources to improve decision-making.

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There is a chapter on bail in the State coroner’s report on the Lindt Café siege. This attempts to explain why Monis, who was on bail for sending threatening letters to soldiers, was subsequently given bail when accused of sex offences against different women, and conspiracy in the murder of his ex-partner. The forensic reconstruction by the coroner should be read in full, since any summary will miss important details. It is still, however, worth giving a simplified summary here. The coroner felt that the submissions of a solicitor working for the Director of Public Prosecutions (DPP) on a bail application in November 2013 (when charged with being an accessory to murder) were inadequate. This was partly because there was only an oral argument, whereas the defence had provided full written submissions. Another error was that the prosecutor did not mention that Monis was on bail for the postal offences, as he did not have access to this prior history. A third error was that the court employed the wrong legal test, but this was not challenged by the prosecutor. The next error happened when junior police officers raised concerns about the outcome within the police, but did not supply sufficient detail on an administrative form to enable a senior officer to recommend an appeal. A fifth error took place in a bail application made in April 2014 when Monis was charged with sexual assault charges on women who came to him for “spiritual healing”. He was able to show that he had been on bail for four years on the postal charges, although no one noticed that the alleged offence of conspiracy to murder had taken place while on bail. A sixth error occurred in October 2014 when the police had obtained evidence to charge Monis with more sex offences. There was a decision by the police to issue a summons rather than making an arrest (a choice that might have changed the subsequent decision to continue the bail). The prosecutor took the view that the increased number of charges did not lead to a greater risk of not meeting bail. He agreed that there was an “unacceptable risk” but this could be mitigated by conditions such as reporting to a police station. On 15 December, while still on bail, Monis entered the café with a shot gun. Although the bail law in New South Wales, already subject to political debate, was subsequently strengthened, the coroner’s report did not suggest that the law, at that time, was responsible for Monis obtaining bail despite being charged with three serious offences. Instead the report

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identified a series of minor human errors. Some could be described as correct or defensible decisions that look different in hindsight. Reading between the lines, others appear to result from overworked prosecutors or system failures in transferring information: there is no evidence that any of the prosecutors or police officers involved recklessly disregarded their onerous responsibilities. Indeed all of the evidence supports the opposite conclusion. It indicates that they were hard-­ working, committed professionals who were extremely busy and took their difficult jobs seriously. In some cases they erred or should have done better. Such shortcomings are regrettable but none of us performs to the highest standard every day and at all times, and none of the police or prosecutors could have foreseen how Monis would abuse the liberty he was granted. (State Coroner of New South Wales 2017, paragraph 199)

The recommendations by the Coghlan review following the Bourke Street deaths are quite complex, and can be viewed as having different consequences depending on whether you prioritize the rights of defendants or public safety. Although Coghlan approved the existing tests, and sometimes suggested that his objective was to clarify rather than alter the existing law, it would be fair to say that some changes made it more difficult for defendants to obtain bail. In Recommendation 10, he suggested that a list of offences should be added to Schedule 2 of the Bail Act “requiring good reasons why bail should be granted”. These include “threats to kill”, “rape” and “armed robbery”. In fact, the onus of proof was already reversed for these offences, although this would not immediately be clear to a member of the public or politician trying to make sense of the technical provisions in the Bail Act. What might appear to be an attempt to strengthen the law is really an exercise in clarification. To complicate matters, the review also made suggestions for diverting minor offenders from the system. We consider this proposal further later in this book. The key issue is whether this review claimed that any of the changes to legislation proposed would have prevented the Bourke Street massacre. While intended to restore public confidence in the bail system through recommending changes in law and procedures, the review appeared to be

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silent on this issue. The mass killings took place on 21 January 2017. According to one journalist: Charge sheets released by the court on Monday reveal Mr Gargasoulas was last year charged by police with reckless conduct endangering life and failing to stop when directed by police, related to an alleged incident in St Kilda on November 19. He also faces unrelated charges including car theft, intentionally causing injury and possessing the drug ice, related to alleged incidents that took place between January 20 last year and January 10 this year. (Cooper 2017)

It appears that this defendant was refused bail by the police on 19 November, but then obtained bail from a Bail Justice.4 This led to criticism that people who were not magistrates were making the decisions. Gargasoulas may have received bail from the police on previous occasions in connection with other charges. There is, however, no reason to conclude that a magistrate in applying the law would have refused bail. The review had no power to compel the police to provide details of a particular bail application.

The Rise in Remand Although it does not always receive much attention as a news story, there is more to bail than the question of whether deaths could be prevented if there were tougher conditions. This was recognized in the Coghlan report in some thoughtful paragraphs that drew on statistical evidence to challenge the perception in Victoria that more offences are committed on bail: 2.17 These perceptions are not necessarily reflected by the data. The number of people received into adult prison on remand in 2015–16 was 70% higher than in 2010–11 (4,034 additional remand receptions). As of 23  The system of bail justices in Victoria had arisen partly as a way of offering speedy decisions on bail applications. The bail justices did not sit in Melbourne’s criminal courts, but travelled to different police stations. They employed the same criteria in the Bail Act as magistrates. After the Bourke Street rampage, this arrangement became politically unacceptable. A new after-hours court was established in the central Melbourne court in which retired magistrates heard applications. 4

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March 2017, 2,328 adults were on remand in correctional facilities in Victoria, with a further 297  in police cells, almost all of whom are on remand. Traditionally, approximately 18–20% of adults in correctional facilities have been on remand. However, in the three years since 2014, this has increased to 33% (for men) and 44% (for women). 2.18 The data also shows that bail is refused more often now than five years ago. For example, from 2015/16, Magistrates’ Court data shows that 33% of bail applications were refused, compared to 2011/12, when 21% of applications were refused. Bail justices are also remanding a slightly higher percentage of applications before them (85.5% in 2016 compared to 83.7% in 2015).

National statistics indicated that Victoria, at that time, had a lower remand rate, and imprisonment rate, than other Australian States, suggesting there was a distinctively lenient court culture, at least in metropolitan areas. According to the figures obtained by Coghlan, which are not available to researchers, the remand rate had increased. Coghlan suggested that this might be due to magistrates becoming risk averse due to “a number of causes, including increased police numbers and increased risk aversion by police and other decision makers”. In an earlier section, he also recognized the central problem that it is impossible to achieve the right balance between protecting the public and giving those who have not been convicted the presumption of innocence. We will return to this central question later in this study. 2.13 Ultimately, the question is how to ensure that the right people are on remand. It is untenable from a practical viewpoint, and undesirable from a principled viewpoint, to simply remand more and more people, although mere numbers cannot govern who should be on remand.

The qualification in the last clause is interesting because it suggests that, if crime is increasing, then the courts should imprison greater numbers. This suggests there is some kind of objective test applied by magistrates, whereas as we have already suggested decision-making varies between States. There is not normally enough information to explain these variations. It seems likely that the proportion remanded is caused in

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some way by the tests provided in legislation, although no one has systematically investigated the extent to which magistrates are influenced by guidelines or directives (although see Weatherburn and Fitzgerald 2015). Notwithstanding the intuition of an ex-judge, we also cannot confidently say that decision-makers are influenced by public concerns about bail as reported in the media. We do, however, know that principles often explicitly stated in legislation matter to the judiciary, and also the police. This is why, on average, a large proportion of applicants obtain bail. We also know that governments in Australia are concerned about the rising cost of imprisonment. Those who believe that the courts should become tougher have to persuade not only liberals seeking to protect the rights of defendants, but hard-hearted policy-makers who see imprisonment as an expensive means of combatting crime. From this perspective, sending ever larger numbers to prison before they have been sentenced puts pressure on scarce resources. There are regular newspaper reports in different States about remand prisons becoming full. Some prisons have been forced to “double up” beds by putting two inmates into cells designed for one person. Another consequence is that it becomes difficult to control inmates without keeping them locked in cells all day.5 It is surprising that there have not been more disturbances, although minor incidents may not be reported. It is inevitable that public employees, who, to some extent, benefit from an expansion in the penal system, have a limited incentive in changing their practices. This tension between professionals and the State, especially one subject to financial pressures to become more efficient, will be another theme we will consider later in relation to bail policy.

The Challenge of Pretrial Services It is possible when focusing on terrible public events to miss significant developments that are taking place in criminal courts, both generally and in relation to bail. Since the birth of modern criminology in the nineteenth century, there has always been an underlying tension between the  Personal communication.

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view that offenders should be punished as rational agents, or helped because their offending is caused or shaped by social or psychological forces. David Garland (2018/1985) argued that there was a shift from viewing offenders as rational agents to recognizing social and psychological causes of crime in the late nineteenth century. But he also recognized compromises between judicial officers and new occupations such as probation officers.6 Observing hearings in magistrates courts today, it is hard not to see the relevance of these debates. Many defendants are, for example, mentally ill or have a drug or alcohol problem. Others are homeless or unemployed. A non-custodial sentence often involves a defendant attending rehabilitative programs. Other programs such as detoxification from drugs or alcohol addiction are provided in prisons. Although there are practical challenges that we consider in this book, some courts have had some success in offering such assistance and programs at the pretrial stage, often within problem-solving courts, or under such principles as therapeutic justice. This is presented as a means of reducing the prison population while addressing the causes of crime. There are other practices employed by some magistrates which are even more subversive in relation to the traditional court. These originate in a movement, developed in the USA, known as therapeutic jurisprudence. The premise is that the contact between the defendant and magistrate can and should itself have a therapeutic (and consequently rehabilitative) effect. This requires judicial officers to spend time talking to each defendant, which does not happen in the traditional courtroom (Nolan 2001). It also involves monitoring, and even rewarding progress. The aim is to encourage personal change and a sense of responsibility in a way that does not happen if a defendant is asked to sign in at a police station twice a week. We will examine the principles behind pretrial services, and what happens in practice later in this study. Although it might seem that these “soft” approaches only work with minor offenders, it should be  One could argue that the authority of judicial officers has never been challenged, and law has absorbed new knowledges. But perhaps its authority is being undermined or reshaped by the emerging welfare-oriented court. 6

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remembered that those who commit violent crimes might also benefit from early intervention. Bayley should arguably not have been released on parole following his sentence. Monis should not have obtained bail. However, a different argument could be made about Gargasoulas who killed six people, including a baby, in the Bourke Street rampage. There was no means of knowing at the time of his bail application that he would commit mass murder. Perhaps he would not have been at large to commit the offences following an assessment, or less likely to commit them if there had been some supervision and support as a bail condition.

Objectives, Assumptions and Research Methods Most researchers and practitioners in Australia accept the legal system as it is and do not imagine there could be radical changes to business as usual. There have been some innovations as particular magistrates and courts have introduced diversion lists to specialist courts for sentencing. We will review these developments in Chap. 2. These courts are selective in admitting defendants and are only concerned with sentencing after a defendant has pleaded guilty. Although they are well regarded, they only assist a few defendants and do not really challenge practices outside the specialist lists. In some US courts, welfare agencies have a much larger role in determining risk or allocating defendants to programs. Bail decisions are often made by delegated administrative officers, overseen by judges. No law reform institute that has reviewed bail in Australia has even contemplated suggesting radical changes. Instead reports look in fine detail at legislation, as if changing the provisions will affect the remand rate, without considering how decisions are made, or if there are alternative models in which judicial officers are guided by welfare professionals. While we are not suggesting there should be radical changes through this study, we believe that alternatives should be considered, and that some organizational changes are necessary and possible.

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We also noticed that most previous research in Australia and other countries was quantitative. It is not entirely clear why this should be the case since in other areas of government policy, such as health and education, there are large volumes of literature by qualitative researchers. One reason may be that, with some exceptions in the USA, sociology and anthropology have never become established in law schools. This is not to say that these disciplines have no influence, but there is no space in the curriculum for teaching social science research methods. Another reason is that quantitative research is viewed by governments as producing objective and useful knowledge. Qualitative research is often still viewed with suspicion or as supplementing quantitative findings. We will discuss the methodological issues that arise in mixed methods research later in the book as well as the practical challenges in obtaining data. The quantitative research on bail, certainly in the USA, but also in Australia and the UK, has been extensive. In the USA, there is a large body of literature that identifies the factors that influence decision-­ making. This research has been used over many years to establish and develop pretrial services in several states, as an alternative to the bond system (Baughman 2018). Other studies in the USA, and the UK, have looked at variations between decision-makers (Hucklesby 1997), or bias towards women or ethnic groups (Sanderson et al. 2011; Oleson et al. 2016). In Australia, researchers have demonstrated the punitive character of bail decisions: defendants often spend time as remand prisoners even though they ultimately do not receive a custodial sentence (New South Wales Law Reform Commission 2012). There have also been studies that have sought to determine how many offences are conducted on bail (e.g., Tasmanian Law Reform Institute 2004; Snowball 2011). Other studies have examined the impact of legislation on sentencing practices. There are also evaluative literatures about the effectiveness of programs offered at the pretrial stage, in which there is an emphasis on quantitative methods such as measuring recidivism rates. One difficulty we found in addressing our own research questions is that the quantitative data was not available, mainly because it is not collected by government agencies. We have filled a gap in the literature by describing occupational work in more detail, and more sensitivity to meaning and situated actions, than previous researchers. However, as

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qualitative researchers will know, there is a difference in the understanding you can obtain from conducting a few interviews and spending a considerable amount of time with any occupational group. We discuss these methodological limitations in later chapters, and the strategies we took to overcome these problems. To look at these difficulties more positively, one might argue that the obstacles and practical difficulties come from the nature of the institution being researched. They are also only significant if you have interpretive objectives, for example in seeking to understand and document legal decision-making. Those who make political arguments about statistical data or selective examples are not troubled by these difficulties. For those interested in theoretical or epistemological questions, we are interested in bail decision-making and services at the local level and do not explain individual actions as resulting from wider structural forces. We will not, for example, make too much of the concept of power in explaining or critiquing bail decisions. We accept that magistrates are employing legitimate authority when they send a defendant to prison (Roach Anleu and Mack 2017). Nevertheless, we also take seriously the arguments of critical theorists who see the criminal justice system as shaped by wider economic and social structures, and how these are changing (Wacquant 2009). However, while there is clearly some truth in these arguments, an overly political argument often makes it harder to see what happens inside institutions or even to understand political processes in great detail. One question we seek to address in this study is how courts change. The fact that courts and other agencies are changing, even in a limited way, is not always recognized by the more political literature. Our objective in this study was to understand bail decision-making in Australia, and to investigate the extent to which welfare services are offered at the pretrial stage. To answer these questions, we observed bail applications in the four States of Tasmania, South Australia, Victoria and New South Wales. We chose these research sites partly because it would be practically possible to conduct research on a small budget, but also because there are differences in remand rates indicated by national statistics. Victoria and, to a lesser extent, Tasmania had low rates by Australian standards. New South Wales and South Australia imprison a larger proportion of defendants before trial. In addition to observing hearings, we

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also sought to interview practitioners, including magistrates, prosecutors, and Legal Aid lawyers. We also interviewed those providing services. We “shadowed” prosecutors in an attempt to answer questions about risk assessment. We also obtained information about the experiences of particular defendants (not available from observing hearings), through obtaining bail histories from lawyers. One way of understanding our approach is that it seeks to obtain access to institutional processes through multiple avenues. We relied heavily on the public nature of court rooms. Even though a university-­ based researcher in Australia has to seek permission to report in these public spaces, it is hard for any agency to prevent this type of research taking place. We also drew on the fact that there are many professional groups. There are, for example, a number of occupational groups that can give some insight into the considerations involved in decision-making. Similarly, a variety of organizations and professionals offer services to defendants.

The Structure of This Book Any book about some aspect of the criminal justice system is an opportunity to explore and revisit the previous literature, and contribute to debates that have been conducted (often for many years) about the nature of law and punishment. It is also an opportunity to contribute to our understanding of methods, present new findings, and to advocate new policies. A study about Australia will contribute to local discussions among policy-makers and criminologists. The findings and arguments may also interest those working in the field of pretrial services internationally. Chapter 2 considers bail reform in the wider context of the history of criminal courts. It is interesting that many progressive reforms and initiatives are happening in criminal courts at a time when the imprisonment rate is rising. This chapter locates these developments as part of debates that started in the eighteenth century on whether the criminal justice system should be concerned with punishing rational offenders, or assisting those not responsible for their actions. It also locates them as part of

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debates about neo-liberalism: the argument that wider structural and cultural forces are responsible for a punitive turn in the last forty years. The second section of the chapter considers what appear to be contradictory developments that seek to rehabilitate defendants and recognize social causes of offending. Restorative justice involves defendants being diverted to conferences in which they apologize to victims. Therapeutic jurisprudence gives judicial officers a healing role in conducting legal proceedings. A third movement, pretrial services, is less well known but has even greater potential to transform the criminal justice system. The chapter concludes with a critical overview of the welfare-oriented court, considering costs and benefits. Chapter 3 considers the issue of methodology, an important part of any scientific project. Most research on bail had been conducted by legal scholars, who have focused on legislation, often combining this with quantitative findings. There are also important studies by US quantitative researchers on risk analysis and by psychologists about decision-making. Our project makes more use of qualitative research methods, although we have also obtained some quantitative data. We see it as important to present the views of practitioners and some detail on what they do in their day-to-day work through observing bail applications. Our approach was influenced by our disciplinary training and experiences. In the research group, there are criminologists with backgrounds in interpretive sociology and anthropology, as well as in legal studies and psychology. Both quantitative and qualitative methods have limitations, and we recognize and discuss the issues. In contrast to many US quantitative studies, we were not able to track bail outcomes: whether the defendants attended the next court date or were charged with new offences while on bail. We could not pursue a “causal” analysis of risk factors. However, we did obtain valuable, descriptive statistical findings from observing 150 applications. In employing qualitative methods, there were also difficulties: for example, it is often hard to understand what happens in court without seeing documents available to practitioners. Nevertheless, a combination of observation and interviewing made it possible to understand how bail decisions are made. We also feel that it is important for social science research to be reflexive about methodological issues. In this

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chapter, we explain how we conducted a mixed methods study, and how this methodology contributes to understanding criminal courts. The next two chapters present our findings on legal decision-making. Chapter 4 draws on interviews with magistrates, prosecutors and defence lawyers. We are interested here in whether there are different perspectives, and possibly differences of opinion within occupational groups. We also try to give a sense of the technical complexity of work that is not always described in existing studies. Chapter 5 goes further in examining work through drawing on observations made of bail applications. It gives a sense of the technical, and procedural, character of getting through the list in a magistrates court. It also examines how magistrates make decisions, and considers the importance of discretion. Magistrates exercise discretion through weighing up the risks, and how they can be managed through conditions such as reporting to a police station or a residence restriction. Informal calculations on the length of time a defendant is likely to be in custody influence bail decisions. Although this level of discretion is often criticized, the current system achieves individualized outcomes. Chapter 6 describes the response of criminal courts to defendants with vulnerabilities. Vulnerability is an increasingly used but contentious concept employed by legal, law enforcement, public health and welfare practitioners, and in much academic literature, to understand disadvantaged groups. The chapter examines responses in criminal courts to “vulnerable” defendants at the pretrial stage drawing on quantitative and qualitative data obtained from observing 150 bail applications. The quantitative data indicate that in half of the applications a vulnerability was either relevant to the decision or mentioned by a practitioner. Through looking at transcripts from hearings, the chapter teases out some of the complexities in responses to both individual vulnerabilities (such as having a drug problem) and structural inequalities such as youth, poverty and indigeneity. Chapter 7 looks at the complex issue of risk assessment: is it possible to develop a decision-making tool that will assist magistrates? In the current political climate, it seems unlikely that governments will enact legislation that makes it easier for defendants to obtain bail. There are, however, other policy options that might change business as usual. One

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initiative that has been attempted in some US courts is to replace judicial discretion with the scientific analysis of risk factors. This chapter explains this reform movement, starting with the Manhattan Bail Project in the 1960s and looking at recent research that claims to identify the predictors of bail. In a few courts, decisions are made by computer programs or algorithms. This chapter looks critically at the arguments. It also compares the two models, discretion or risk analysis, in terms of the potential for unfairness and political acceptability. Chapter 8 describes some aspects of pretrial services drawing on our research in Australia. The most promising initiative that has reduced the numbers remanded in custody is to offer pretrial services to defendants with vulnerabilities. These include giving defendants access to drug programs, and assistance from mental health professionals, and housing, to make it easier for magistrates to grant bail. The chapter reviews three ways in which services are offered in Australian courts: through ad hoc arrangements, “parallel” agencies such as the Forensic Mental Health Service and integrated services. The chapter draws on a focus group in Melbourne with case workers from the Court Integrated Services Program in Melbourne, and interviews in Sydney with drug counsellors in the Magistrates Early Referral into Treatment (MERIT) program. The chapter looks critically at whether programs are effective and whether welfare programs are punitive. Chapter 9 looks at the prospects for court reform relating to bail in Australia. It provides an overview of reform initiatives in four jurisdictions (Tasmania, South Australia, Victoria and New South Wales). It then examines three initiatives in more depth drawing on interviews with a campaigner and policy officers. It is suggested that, even though courts are conservative organizations, they can change given the right internal and external circumstances. The conclusion summarizes the evidence supplied from this case study in Australia and reviews the concepts of risk and vulnerability in relation to bail. Although legal practitioners believe in the presumption of innocence as a key principle of justice, bail laws will remain tough, especially when disturbing offences (including a mass killing) are committed by defendants granted bail. The alternative used in some US States of replacing judicial officers by algorithms would not be acceptable in Australia or

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elswhere. However, we would recommend greater use of bail information and support schemes, and actuarial guides. Pretrial services are offered in the State of Victoria to 14% of defendants, and this program is expanding. There are practical ways to challenge business as usual and to give magistrates more options. The growth of pretrial programs may eventually lead to a welfare-oriented court in which fewer offenders are imprisoned.

References Anleu, S.R. and Mack, K. 2017 Performing Judicial Authority in the Lower Courts. Palgrave, London. Australian Associated Press 2017 “Lindt Café siege memorial unveiled in Sydney’s Martin Place”. The Guardian, 16 December. https://www.theguardian.com/australia-news/2017/dec/16/lindt-cafe-siege-memorial-unveiled-insydneys-martin-place. Accessed November 2018. Baughman, S. 2018 The Bail Book: A Comprehensive Look at Bail in America’s Criminal Justice System. Cambridge University Press, Cambridge. Burgess, G. 2015 “Eaton murder’s violent past”. The Examiner, 9 September. https://www.examiner.com.au/story/3339712/eaton-murderers-violentpast/. Accessed November 2018. Callinan, I. 2013 Review of the Parole System in Victoria. Department of Justice, Victoria. Coghlan, P. 2017 Bail Review: Second Advice to the Victorian Government. Victorian Government, Melbourne. Cooper, A. 2017 “Bourke Street: Alleged killer refuses to appear in court”. The Age, 23 January. https://www.theage.com.au/national/victoria/bourke-streetalleged-killer-at-police-headquarters-after-being-released-from-hospitalmedia-reports-20170123-gtws1p.html. Accessed November 2018. Dowsley, A., Flower, W. and Carlyon, P. 2015 “Justice system betrayed Jill Meagher as failures let Adrian Bayley wander the streets”. Herald Sun, 26 March 2016. https://www.heraldsun.com.au/news/law-order/true-crimescene/justice-system-betrayed-jill-meagher-as-failures-let-adrian-bayley-wander-the-streets/news-story/ae09d19caf04ba4690bd35bf57e43399. Accessed November 2016. Ford, C. 2017 “Five years on, have we absorbed any lessons from Jill Meagher’s murder”. Sydney Morning Herald, 22 September. https://www.smh.com.au/

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lifestyle/five-years-on-have-we-absorbed-any-lessons-from-jill-meaghersmurder-20170921-gylxpr.html. Accessed November 2018. Garland, D. 2018/1985 Punishment and Welfare: A History of Penal Strategies. Quid Pro Books, New Orleans. Hucklesby, A. 1997 “Court culture: An explanation of variations in the use of bail by magistrates’ courts”. The Howard Journal. Vol. 36, No. 2, p. 129–145. Marshall, W. and Moulden, H. 2001 “Hostility toward women and victim empathy in rapists”. Sexual Abuse: A Journal of Research and Treatment. Vol. 13, No. 4, pp. 249–255. McKay, H. and Zervos, C. 2017 “Blackburn South woman dies in hospital after Bourke St. rampage”. Herald Sun, 31 January. https://www.heraldsun.com. au/news/national/blackburn-south-woman-dies-in-hospital-after-bourke-strampage/news-story/80819d24ec868a4b14f35c2bb6df7ebe. Accessed November 2018. New South Wales Law Reform Commission 2012 Bail. Report 133, NSWLRC, Sydney. Nolan, D. 2001 Reinventing Justice: The American Drug Court Movement. Princeton University Press, Princeton. Oleson, J., Lowenkamp, C., Cadigan, T., VanNostrand, M. and Wooldredge, J. 2016 “The effect of pretrial detention on sentencing in two federal districts”. Justice Quarterly. Vol. 33, No. 6, pp. 1103–1122. Sanderson, J., Mazerolle, P. and Anderson-Bond, T. 2011 Exploring Bail and Remand Experiences for Indigenous Queenslanders. Griffith University, Queensland. Snowball, L. 2011 Police Bail and Risk of Re-Offending. Crime and Justice Statistics Brief. NSW Bureau of Crime Statistics, Sydney. State Coroner of New South Wales 2017 Inquest into the Deaths Arising from the Lindt Café Siege. Coroner’s Court of NSW, Sydney. Tasmanian Law Reform Institute 2004 Offending while on Bail. Tasmanian Law Reform Institute, Hobart. Wacquant, L. 2009 Punishing the Poor. Duke University Press, Durham NC. Weatherburn, D. and Fitzgerald, J. 2015 “The impact of the NSW Bail Act (2013) on trends in bail and remand in New South Wales”. Issue paper no. 106. NSW Bureau of Crime Statistics and Research, Sydney.

2 Bail Reform in Context

This book is about a stage of the criminal justice process that is often neglected by criminologists. Even those who investigate criminal courts focus on defence counsel, plea-bargaining, prosecutorial practices, trials and sentencing. We would argue that the pretrial stage is equally important and deserves more empirical research. In this book, we spend a lot of time describing the technical details of bail decisions in criminal courts, not least how the relevant legislation is understood and applied. But we also believe that it is important to understand the criminal justice system holistically, and in a wider context. This requires considering the relationship between different agencies such as the police, courts and prisons, and adopting a broader historical perspective in considering how the criminal justice system has developed and where it might be going. In the second section of this chapter, we consider what might be called the emergence of the welfare-oriented court. The last ten years has seen the rise of a number of reform movements within criminal courts that seek to rehabilitate defendants who plead guilty, including restorative justice and therapeutic jurisprudence. Although it differs in important respects, the pretrial services movement today has similar objectives.

© The Author(s) 2020 M. Travers et al., Rethinking Bail, https://doi.org/10.1007/978-3-030-44881-3_2

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We provide an overview of each movement and introduce debates about the costs and benefits of pretrial services. We consider two broader contexts in the first section of the chapter. The first is to see recent rehabilitative initiatives informed by philosophical debates going back centuries about the nature of offending and the purpose of criminal justice. If you take this long view, both pretrial services and other recent initiatives can be seen as advancing the view that crime has social and psychological causes, rather than the opposing view that criminals are responsible for their actions. Although courts and other agencies recognize this to some extent, they could go a lot further in establishing a welfare-oriented court. There has also been considerable criminological writing in recent years that has responded to what is perceived as a turn away from the rehabilitative ideal towards punishment. Key analytic terms in this literature are “the punitive turn”, “punitiveness” and “neoliberalism”. Although this literature advances persuasive narratives, we are not suggesting that there are clear answers from the wider context for understanding bail reform.

 ineteenth-Century Debates About Crime N and Punishment Debates about crime have always been as much about philosophical assumptions as the practices of social institutions such as the police, courts and prisons. A central nineteenth-century debate emerged between the classical and positivist traditions in criminology. Classical thinkers viewed human beings as rational agents who exercised free will. Positivists saw them as shaped by social, psychological and biological forces outside their control. Although these ideas are not explicitly stated in legislation, they shape how courts, and other agencies, respond to crime. As we will see, magistrates are influenced by and reproduce these ideas, when making bail decisions. They are not always consistent in their practices.

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The Rational Offender and Due Process A key text that informs the establishment of modern criminal justice systems was Cesare Beccaria’s On Crimes and Punishments. Beccaria (1995/1764) exposed a cruel and arbitrary system in which suspected criminals were tortured to confess to offences. He also offered a blue print for a more rational approach based on codified law, compliance with due process and accountability of decision-makers through public hearings. In order that punishment should not be an act of violence perpetrated by one or many upon a private citizen, it is essential that it should be public, speedy, necessary, the minimum possible in the given circumstances, proportionate to the crime, and determined by the law. (Beccaria 1995/1764, p. 113)

The principles advanced by Beccaria are still accepted as ideals today, even if the actual operation of the criminal justice system falls short through organizational failings, as well as, in some cases, draconian legislation resulting from periodic “moral panics”. Beccaria did not, however, see a role for the criminal courts to rehabilitate criminals. This criminological thinker would have felt uncomfortable with the tendency of many modern traditions to see offenders as cognitively impaired or not capable of making rational decisions. Instead, defendants were viewed as having the capacity to make choices and to understand the deterrent effect of penalties. In this system, judges only applied the law and did not give medical or psychological advice. This remains true today in that new approaches, such as therapeutic jurisprudence, only have a limited influence in specialist courts, are only pursued by a minority of judicial officers and are viewed with some suspicion by others. The new movements are often pushing against or disrupting long-established principles and traditions.

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The Human Sciences and Crime Even though law as an institution has attempted to view defendants as having rationality and free will, a different way of explaining offending known as positivist or scientific criminology has gradually been absorbed to the extent that it is often hard to separate the two. Michel Foucault (1995/1975) has examined the rise of criminology as a scientific pursuit that seeks to rehabilitate (discipline) rather than punish offenders. The emerging sciences that informed this movement, psychology and sociology, modelled their efforts on the natural sciences. Crime had causes and could, to some extent, be reduced or prevented through employing remedies based on this scientific understanding. Although these methods were developed and applied in prisons, they have also influenced how defendants are sentenced. It is common today for social and psychological issues to be presented as mitigating factors. They are also central in parole decisions, and increasingly in bail applications. Some other early positivists sought to identify the biological causes of crime. Another Italian, Cesare Lombroso (1835–1909), pursued the idea that criminal behaviour could be inherited and that criminality could be predicted by the presence of congenital defects (Horn 2003). His view has long been criticized as misguided pseudo-science that might lead to morally unacceptable responses in social engineering such as eugenics. Nevertheless, many forensic criminologists today believe that new developments in genetics and brain science will eventually identify a physical, material cause of criminality. From a different direction, sociologists discovered through analysing official statistics that crimes were not committed randomly. Adolphe Quetelet (1796–1874) identified stable rates for particular occupational groups (Donnelly 2015). Emile Durkheim (1858–1917) later demonstrated that crime rates seemed to increase during periods of economic growth (Durkheim 2014/1873). These findings led post-war governments to believe that crime could be reduced by social engineering designed to reduce inequality. Although such ideas have become unfashionable today, it is still believed that educational measures, even the provision of social housing, will reduce offending. This is why prisons have become interested in

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reintegration programs. It also means that criminal courts, despite originally only being concerned with making and applying law, are increasingly interlinked with government programs concerned with influencing the behaviour of low-income or disadvantaged groups. The classical and positivist traditions, what Foucault (1995/1975) termed “discourses”, are entwined in modern criminal justice systems. Nevertheless, they represent two distinctive ways of thinking about crime that cannot easily be reconciled. In the criminal courts, several reform initiatives seem to accept that crime has social and psychological causes, and in doing so are disrupting traditional practices.

The Punitive Turn and Neo-liberalism Contemporary debates about criminal justice, at least in the Anglo-Saxon world, do not advance philosophical arguments about the causes of crime. Instead, they are concerned with the growing prison population. A number of powerful and theoretically sophisticated books have been written recently that criticize this development, and explain it as arising from either increasing inequality or changing assumptions about crime. However, the political arguments are often underpinned by a belief in rehabilitation and the assumption that crime has social causes such as poverty and unemployment. David Garland (2001) has employed Foucauldian ideas to identify a shift in how we understand crime and criminal justice that took place during the 1970s. Loic Wacquant (2009) has argued that the new punitiveness is directed at an underclass produced by neo-liberal economic policies. In Australia, Chris Cunneen et al. (2013) have argued that we are currently in a period of “hyperincarceration” in which minority groups, in particular Indigenous peoples, are targeted. These texts remain influential in providing general explanations for the marked rise in imprisonment in some western countries since the 1970s.

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The Culture of Control One of David Garland’s books offers a detailed analysis of the rise of welfare ideas and practices in the British criminal justice system in the late nineteenth century. Prisons had previously been warehousing institutions, with no effort made to reform prisoners: [The study] describes how the penal system deemed the offender to be a free, equal, responsible legal subject; the insistent individualism of the prison’s reliance on cellular isolation; the work-ethic ideology conveyed by its regime of unproductive prison labour; the absence of State aid for offenders; and the operative conception of punishment as a social contract response to an individual who freely chooses to break the law. (Garland 2018/1985, p. v)

By the early twentieth century, a coalition of occupations and reformers had set the criminal justice system on a different course. Instead of simply punishing, prisons and the newly formed Probation Service sought to reform and rehabilitate offenders. Criminology as a new science provided tools and expertise in this new enterprise. Garland notes that there was a complex relationship between how the criminal justice system was changing and developments in society as a whole: The culpability of offenders, the limits of criminal responsibility, the responsibilities of the State in respect to the reform of offenders or aid to ex-prisoners, the design of institutional regimes for correction or control— were intimately linked to other issues of social policy, such as the administration of workhouses or the organization of the Welfare State. Modern penality’s positive approach to the reform of offenders: its extensive use of interventionist agencies; its deployment of social work and psychiatric expertise; its concern to regulate, manage and normalise rather than immediately to punish; and of course its ‘welfarist’ self-representations—all of these combined to link the new penality with the broader control strategies [and] ideological forms … that emerged at this moment. (Garland 2018/1985, p. vii)

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Garland notes that these practices resulted in a reduction of the prison population, although there was an expansion of supervision in the community. However, no institution or set of ideas lasts forever. A follow-up study, The Culture of Control (2001), describes how this progressive or modern penal system rapidly collapsed in the early 1970s. According to Garland, in our own times the criminal justice system no longer believes in rehabilitation as a goal. Instead, it again views offenders as responsible for their own actions and deserving of punishment. Tough legislation, such as mandatory sentencing has resulted in a higher prison population. Professional sympathies lie with victims rather than, as previously, with offenders. Although there are still programs concerned with rehabilitation, governments and most practitioners no longer believe that these are effective in reducing crime. Because this book is about the growth of pretrial services, it is important to be clear on how Garland advances this controversial argument. He is not suggesting that there are fewer rehabilitative initiatives, although this is implied. He is not suggesting that most practitioners accept a famous study in the 1970s that claimed to find in relation to programs that “nothing works” (Martinson 1974). Instead, he argues that the ideas and assumptions that were central to the criminal justice system during the 1960s now only interest “specialists” and are only pursued if they can demonstrate economic value. Rehabilitation no longer claims to be the overriding purpose of the whole system, or even of traditionally welfarist agencies such as probation and parole. It is now one aim among others, delivered as a specialist provision, and no longer accompanied by any great amount of idealism or expectation. The rehabilitation of offenders is no longer viewed as a general, all-­ purpose prescription, but instead as a specific intervention targeted towards those individuals most likely to make cost-effective use of this expensive service. It is treated as an investment rather than a standard entitlement, and like all investments, is closely monitored and evaluated to ensure that it produces returns. (Garland 2001, p. 176)

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Punishing the Poor Another criminologist, again from a sociological background, who has influenced contemporary debates about crime and punishment is Loic Wacquant. His writings, influenced by Karl Marx and Pierre Bourdieu, seek to explain the extraordinary rise of imprisonment in the USA since the early 1970s. Even though there are indications of slower growth and even decline in the last few years (Clear and Frost 2014), the statistics supplied are disturbing: The about-turn of US carceral demographics after 1973 proved to be as sudden as it was spectacular. Contrary to all expectations, the country’s confined population took to growing at a vertiginous speed such that, in a development without precedent in the history of democratic societies, it doubled in ten years and quadrupled in twenty. Starting from less than 380,000  in 1975, the number of people held between bars approached 50,000 in 1980 before leaping beyond 1 million in 1990. It continued to expand at an infernal rate of 8 percent per year on average. … If it were a city, the carceral system of the United States would be the country’s fourth-­ largest metropolis, behind Chicago. (Wacquant 2009, p. 114)

Wacquant believes that this rise in imprisonment has two causes. The first is that there were severe reductions in welfare during this period, and more efforts to control and discipline low-income groups. This is part of the economic and social program known as neo-liberalism that has reshaped many western countries in recent times. A central objective, according to critics, has been to reduce welfare spending and the employment conditions of workers, while reducing taxes and social responsibilities of the wealthy. The second related cause was an expansion of the criminal justice system that was directed against the poor. Wacquant argues convincingly that there was no increase in violent crime during this period. Instead, the increase in imprisonment came from the response of legislators and government agencies to low-level offending that was previously not viewed as criminal behaviour and tolerated by law enforcement agencies:

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The quadrupling of the US carceral population in two decades cannot be explained by the rise of violent crime. It results from the extension of recourse to confinement for a range of street crimes and misdemeanours that did not previously lead to a custodial sanction, especially minor drug infractions and behaviors described as public disorders and nuisances, as well as from the constant stiffening of sentences incurred. (Wacquant 2009, p. 125)

Hyperincarceration A third text on the rise of imprisonment is worth mentioning, partly because it focuses on Australia. The imprisonment rate in this country is much lower than in the USA. Nevertheless, there has been a steady and substantial increase since the 1970s. Hyperincarceration differs from some political statements in recognizing that this is not a uniform process. The authors show, for example, that there were variations between different Australian States in sentencing legislation or parole decisions during the 1990s. This suggests the need to describe political processes in different States, and within institutions, instead of relying on a general explanation such as neo-liberalism. We consider these issues in Chap. 9. The study is also distinctive in identifying three possible underlying drivers. First, Cunneen et al. argue that a racialized, postcolonial response to Indigenous Australians is significant in explaining a rise in imprisonment. They note, for example, that between 2001 and 2011 age standardised imprisonment rates (per 100,000) for Aboriginal and Torres Strait Islander Australians increased by 47.4 per cent from a high base of 1,267 to 1,868 (nearly 1 in every 50 Indigenous person) while in stark contrast non-Indigenous rates increased 4 per cent over 10  years off a relatively low base of 125 to 130. (Cunneen et  al. 2013, p. 95)

This suggests that the underlying cause of a larger national prison population is racial discrimination against Indigenous peoples. This argument may not convince everyone, given there is only a small proportion

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of Indigenous people in the total population.1 However, it makes one look differently at imprisonment. It also suggests that studies based on research in metropolitan courts, or in certain States, may miss the centrality of race in the Australian criminal justice system. A second driver identified by Cunneen et al. (2013) is a reduction in welfare provision for those with mental illnesses that has resulted in an expansion of prisons. One Australian study found that the rate of people with a mental disability in prison was “three to six times” higher than in the general population (Butler and Allnutt 2003). This raises the question as to whether specialist courts, or medical and psychiatric support in prisons, can compensate for abolishing residential facilities and running down community services during the 1970s. A third driver is what the authors see as the rise of risk analysis within criminal justice agencies. It is suggested that instead of seeking to rehabilitate defendants, agencies are mainly concerned with measuring risk. This began as a means of presenting professional work, especially in Community Corrections, as a science that could be evaluated, in the context of criticisms that “nothing works”. It developed into a set of tools and way of thinking that focused on potential harm to the community: Unshackled from the empirical constraints of the earlier approach, with its requirements for predictive accuracy and concern about false positives (those predicted to ‘be bad’ but who in the end were not), this new approach to the problem of risk regarded the prison as a kind of bottomless resource for the sequestration of risky, dangerous or simply unpleasant characters. (Cunneen et al. 2013, p. 76)

Other procedures introduced to improve efficiency also had the unintended consequence of adding to the prison population. An example relating to bail is that police were asked to check whether defendants were meeting their curfews. It was a useful performance indicator for the organization since the checks and outcomes could be measured. But the result of improving efficiency was that more defendants were charged  Wacquant (2009) makes a stronger argument in relation to African Americans, a larger proportion of the population in the USA. Tough laws have been targeted against offending in this “underclass”, while at the same time welfare benefits have been removed. 1

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with technical breaches of bail (Robinson and Bartkowiak-Théron 2014). Although it is difficult to measure the effects, one can assume that this policy has resulted in defendants spending more time as remand prisoners.

An Assessment This selective summary of three political statements gives a sense of how many criminologists influenced by sociology understand the criminal justice system in a broader context. There are many similarities and areas of common ground, while still leaving room for debate about theoretical assumptions and the empirical evidence. Some might complain that, despite a wealth of descriptive detail, there is still no convincing scientific explanation for growing punitiveness. Garland suggests that many cultural and material processes came together over a long period that resulted in a new way of thinking about crime. Wacquant attributes welfare cuts and a punitive response to minor offending to neo-liberalism. This is understood in Marxist terms as a response of the dominant economic class through the State to an underlying economic crisis. Yet it remains unclear why the prison population has grown so rapidly. Cunneen et al. introduce potential drivers, such as a punitive response to Indigenous Australians, that cannot explain why national imprisonment has steadily increased. Nor is it clear why some western countries have lower rates of imprisonment and why, in the USA, there have recently been successful initiatives to reduce expenditure on prisons in some States (Clear and Frost 2014). One criticism from the perspective of this empirical study is that these structural accounts present a general overview of the criminal justice system, drawing on selective examples that strengthen their political case. They do not examine professional work in much detail and have little interest in listening to different viewpoints. A historical analysis raises issues that may not be visible when conducting observational research. But there are also dangers in accepting a political account at face value. We may be asked to accept an incomplete or partial context, one that is not recognized by those working in criminal justice agencies.

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The Welfare-Oriented Criminal Court No one can deny that prisons have massively expanded, both in the USA and to a lesser extent in other Anglo-Saxon countries. However, claims that fewer resources are spent on rehabilitation than previously might seem odd to the many professionals working in this field. There are literally thousands of rehabilitative programs being pursued by departments of corrections internationally. As will be demonstrated in this chapter, this is also the purpose of pretrial diversionary programs and specialist criminal courts that have grown exponentially during this period. The ideal of rehabilitation seems not only to have survived but flourished in a period of high imprisonment. It is even possible that we are at the start of a gradual shift in thinking and practices that will result in a very different criminal justice system based on prevention and treatment through welfare initiatives (Farrington and Welsh 2012). In this emerging system there may be a smaller prison population and more emphasis on social science in treating and preventing crime, but also less protection for defendants through due process and judicial oversight. Although this may seem far-fetched, the possibility of moving in this direction has always interested criminologists. Although criminal courts in Australia have not changed substantially since the first days of colonial settlement, there have been some interesting developments in the last twenty years. The first has been a transformation in how the youth justice system operates since the 1990s, so that many offenders are diverted to restorative conferences run by police officers or youth justice workers (Cunneen and White 2007). A second development has been the establishment of specialist courts, including drug courts and mental health courts (Magistrates Court of Tasmania 2008; Freiberg 2010). Defendants who plead guilty are diverted to these courts. Sentencing is deferred while the defendants undergo a program of rehabilitation overseen by a magistrate. A third development has been the spread of new philosophies of justice, each with the potential to influence judicial work or inform new programs. The most influential have been restorative justice and therapeutic jurisprudence. Together these aspire to a welfare-oriented court, in the sense that procedures and services are

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concerned with rehabilitation as opposed to simply applying the criminal law.

Restorative Justice Restorative justice, in its modern judicially focused manifestations, originated in New Zealand and in Ontario, Canada, through adapting ways of resolving disputes among Indigenous peoples, but has now become an international movement.2 The central principle is that offenders should be accepted back into the community, provided they have made a sincere apology to the victim. This differs considerably from theories of sentencing that emphasize retribution or deterrence. It also differs organizationally because the offender is often required to face the victim. Restorative justice is underpinned by psychological theories about personal change. Braithwaite (1989) has argued that the offender must feel shame before the judicial processes can be confident that there will be no further offending. There is usually more care and attention given to both victims and defendants by professional helpers than in conventional court proceedings. Restorative justice has been successful as a reform movement in adding additional diversionary mechanisms to the criminal justice system that do not challenge existing institutions. Nevertheless, it differs from conventional approaches to sentencing in drawing, often explicitly, on sociological and psychological theories about personal change. In Australia, restorative justice has mainly influenced the response to young offenders.3 Instead of being sent to the youth court, in most States young offenders who plead guilty are directed to attend conferences. “Conferences” recognize the social circumstances that explain and mitigate offending to a greater extent than is possible during a court hearing. If appropriate, offenders meet victims but even when this is not possible they explain their actions and apologize to their parents and members of the community. This has been referred to as “reintegrative shaming”  For an introduction to this extensive literature, see Johnstone (2013).  For an overview, see Daly and Hayes (1997).

2 3

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(Braithwaite 1989). Proponents argue that diversion from the criminal justice process to restorative conferences is more effective in influencing future behaviour than attending court. In the UK, there has been an ambitious attempt to introduce restorative conferences across the entire adult criminal justice system (Ministry of Justice 2012). The scale of the UK system is unusual, since pilot schemes often receive temporary funding or are trialled in particular courts. However, implementation has proved difficult partly because magistrates are overworked, but also because many trained in law feel uncomfortable in employing new quasi-legal practices (Donoghue 2014).

Therapeutic Jurisprudence Therapeutic jurisprudence is an approach to criminal justice that developed out of the experiences of judges in responding to mental illness (Winnick and Wexler 2003). It is often referred to under the umbrella term “therapeutic justice” that refers to a number of welfare-oriented initiatives and sentencing philosophies. The central assumption in therapeutic jurisprudence, which was deliberately developed as a philosophy rather than a set of guidelines, is that judges should be conscious of how their words and actions can help or cause harm to defendants: This approach suggests that the law itself can function as a therapist. Legal rules, legal procedures, and the roles of legal actors, principally lawyers and judges, may be viewed as social forces that can produce therapeutic or anti-­ therapeutic consequences. The prescriptive focus of therapeutic jurisprudence is that, within important limits set by principles of justice, the law ought to be designed to serve more effectively as a therapeutic agent. (Winnick and Wexler 2003, p. 280)

As in the case of restorative justice, this approach to criminal justice is based on assumptions that defendants do not respond well to being placed in a formal environment in which there are few opportunities to interact with judges and lawyers. In therapeutic jurisprudence, the judge

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is viewed as having a therapeutic role through talking to defendants about their problems. At its simplest, therapeutic jurisprudence can involve a judicial officer asking a defendant who has pleaded guilty why he or she committed an offence, or even speaking directly to the defendant when making sentencing remarks. In many court hearings, this does not happen both because there is no time for a conversation and because it is normal for judicial officers to address defendants in the third person, and speak to them only through their legal representatives. Therapeutic jurisprudence is also applied in drug courts, and other specialist courts, including the youth court. One objective in these courts is to make criminal justice more meaningful for defendants through the magistrate tracking progress of defendants, and giving encouragement and feedback (Burns and Peyrot 2003). Advocates in the USA go further in suggesting that the experience of attending a drug court results in personal change over a series of meetings, leading to a “graduation” ceremony, in a similar way to a therapeutic relationship evolving into a conclusion. To be diverted into these courts, one needs to satisfy the criteria, for example, of being a drug user. One also needs to plead guilty and be at risk of receiving a sentence of imprisonment. In Australia, defendants report regularly to a magistrate in a process of deferred sentencing in which they receive access to specialist services. In American drug courts, the judge often has a more active motivational role, drawing on a psychological theory that has some similarities to the “twelve steps” program used in Alcoholics Anonymous (Nolan 2001). There are rewards, such as obtaining gold stars, and even a graduation ceremony for remaining drug free. Those who fall back into their old ways during the diversion are sent to prison, but only for short periods, to encourage self-improvement.

Pretrial Services Restorative justice, as practised in youth courts and specialist courts such as drug and mental health courts, have been established for more than twenty years in many Australian States and are becoming familiar parts of the court landscape. By contrast, pretrial services have so far only been

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introduced in Victoria (Department of Human Services 2005) and are less well known nationally. The magistrates and civil servants behind the reforms in Australia do not seem to have been directly influenced by pretrial services in the USA. This can be contrasted to attempts at policy transfer in the UK promoted by enthusiasts during the 1990s. Even though the pilot schemes were viewed as effective, the program failed when resources for new initiatives were withdrawn after the Probation Service was restructured with a focus on control rather than rehabilitation (Drakeford et al. 2001). Overall, the pretrial services movement is less established in criminal justice institutions outside the USA, and even in that country it has not developed an intellectual rationale. Some background on how these programs have developed in different countries will assist in understanding this criticism and also the potential of this reform movement.

The USA Pretrial programs originated in the USA during the 1960s, although the reform movement started even earlier during the 1920s (Baughman 2018). The programs were a response to the particular system that had developed around bail in that country and is still employed in most criminal courts today. In the USA, bail can normally be obtained if the defendant purchases a bond. This means that low-income (indigent) defendants are refused bail and, due to delays, some stay in prison for years simply on financial grounds. In the first half of the twentieth century, many practitioners expressed concerns about this system, although they were looking for evidence that it was safe to give bail without bonds. This was provided in a study conducted by law students for the VERA foundation in New  York that became known as the Manhattan Bail Project (Sturz 1963). This study found that giving information about defendants to judicial officers increased the chances of obtaining bail (an early example of what today is called a “bail information scheme”). More radically, it also identified factors, such as community ties, that could predict whether or not a defendant would meet bail. It was also suggested that, since most defendants had these ties, there should normally be no problem in granting bail. The only defendants who should be refused were violent offenders who presented a risk of reoffending or fleeing the jurisdiction.

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We will look at these findings, and claims made for actuarial decision-­ making, more critically in Chap. 7. Since the 1960s, there have been concerns about offences committed by defendants on bail. Although it is difficult to be sure from the literature, what seems to have happened is that those promoting or establishing programs have backtracked for political reasons. It is now recognized that there is a significant group of medium-risk defendants (VanNostrand and Keebler 2009) who will fail to answer bail. However, these can be released with conditions that in some cases mean attending or receiving support from pretrial programs. This method of classifying defendants has been established in many States and endorsed as best practice by many organizations, including the American Bar Association (Clark and Henry 2003). Even according to optimistic proponents, only about 10% of courts in the USA have such programs, inviting questions as to how they have been introduced possibly against political opposition. One empirical study intriguingly reports that, in at least one court, decisions on bail are outsourced to independent agencies (Castellano 2011). These divide defendants into low-, medium- or high-risk groups. High-risk defendants remain in prison, while low-risk defendants (many of whom would previously have been imprisoned) obtain bail. Those in the medium category are provided with different levels of support or required to attend programs, depending on the level of risk.

The UK Although pretrial services have only existed as trial or pilot schemes in the UK, the determination of those campaigning for change should not be overestimated. At one point, there was a real prospect that the Probation Service might extend its responsibilities beyond community corrections to pretrial programs (Drakeford et al. 2001). Anthea Hucklesby (2003) has described a pilot bail hostel in some detail. She noted that many defendants are refused bail because they are homeless and influenced by criminal associates. Magistrates would, however, grant bail to defendants living in bail hostels. A key consideration was that the person on bail was receiving some kind of supervision. The hostels still exist in particular areas and make it easier to obtain bail. It seems likely that governments

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may have been sympathetic to this program. However, they had to choose between programs and satisfy a number of political constituencies, including victims of crime, with limited resources. It is easy to see why restorative justice has done well in obtaining greater political support than pretrial services, even though one could argue that the latter offers better value for money through reducing the prison population.4

Australia Pretrial services in Australia are only offered by one jurisdiction, Victoria, although we understand that Queensland and Western Australia are interested in developing their own programs. There are significant differences to the USA. The first is that there is no preliminary screening of all defendants to obtain background circumstances that is given to magistrates. This approach was employed in a pilot scheme of Bail Support Officers during our study in New South Wales (Donnelly and Corben 2018), but discontinued in favour of other initiatives aimed at reducing the prison population. Instead, in Victoria, defendants have to approach a central service. They are assessed regarding whether they would benefit from supervision and support, such as attending a drug rehabilitation program or obtaining temporary housing. The central service then admits them on a four-month program. At the next bail application, they are represented by case workers who provide a report and undertake to monitor progress. We were told that 14% of defendants were admitted to this program and it might be possible to admit many more with funding.

Costs and Benefits Given that criminology has always been a site for debate between different views on the causes of crime, and how we should respond to offending, these initiatives have inevitably received mixed responses. Most  Criminologists often attribute greater punitiveness in the UK criminal justice system to neo-­ liberalism (Bell 2011). There has, arguably, been a missed opportunity for bail reform as a consequence of austerity measures that started before the 2007–08 Global Financial Crisis, although at the same time an expansion in restorative justice programs. 4

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commentators, if not ordinary citizens, view criminal offending in terms of personal responsibility or believe in the value of deterrence and retribution. Although reform initiatives often contain a variety of ideas that appeal to different audiences, a central assumption is that crime has social and psychological causes. Reformers believe that defendants, who are mostly from deprived backgrounds and often suffer from the complications arising from multiple social problems, are not responsible for their actions. Although criminologists still write political and philosophical texts about criminal justice, anyone seeking to influence governments today has to write about the costs and benefits of policy initiatives. If one accepts that criminal behaviour is socially determined by external forces, this suggests the need for treatment and support throughout the criminal justice process and greater efforts to keep offenders out of prison. The main argument advanced against therapeutic programs is that they undermine traditional protections in due process, and it is difficult to demonstrate conclusively that they have rehabilitative value.

Due Process Similar debates about procedural fairness took place when children’s courts were reformed from the late 1960s. Earlier in the twentieth century, decisions were often made by social workers or lay people without legal oversight. Some young people were detained for years, without having committed a criminal offence. Although this cannot happen to adult defendants in restorative conferences or the drugs court, there are dangers in reducing due process rights. To obtain the supposed benefits of these programs, defendants are required (possibly some are even pressured) to plead guilty. It has been suggested that, in restorative conferences, the defendants often receive greater punishment than would have been imposed by a court. In the case of drug courts, critics have argued that the therapeutic process is itself a form of punishment, even if many defendants experience this as temporarily empowering (e.g., Hannah-Moffat and Maurutto 2013). Pretrial services are even more controversial in removing due process rights. They give judicial officers powers to make mandatory orders requiring defendants who have not been convicted, and are pleading not guilty, to attend therapeutic programs (Castellano 2011).

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Effectiveness Each of these reform movements can supply some convincing evidence that these programs work in reducing recidivism when compared to sentencing defendants in traditional courts. There are, however, methodological problems in demonstrating effectiveness that should be acknowledged, even if they are not normally given great emphasis in evaluation reports funded by agencies. An example is the claim made by proponents of restorative justice that diversion to restorative conferences has resulted in a fall in youth crime. It is possible to demonstrate this effect, with some qualifications, in States that employ restorative conferences. However, Victoria has, until recently, had by far the lowest detention rate for young offenders, but is also the only jurisdiction that does not divert young people to restorative conferences (Travers 2012). Even if you trust the statistics, it is not always clear what they mean. It is possible that restorative conferences have had some effect in reducing youth detention in Tasmania along with establishing a youth court with a dedicated magistrate. But an equally plausible explanation is that the police and courts are giving young people more chances, or even that the police are charging fewer young people for extraneous reasons. Therapeutic jurisprudence also invites critical questions about effectiveness. There is no doubt that directing considerable time and resources at carefully selected individuals on diversionary sentencing programs, such as drug courts, has positive effects. The difficulty is that only a small proportion of defendants are diverted. Those who plead not guilty are ineligible for the drug court. In addition, there are some defendants (it is difficult to be more precise than this since no one has so far conducted a survey) who prefer conventional sentencing, even if this results in a sentence of imprisonment. One conclusion might be that, although some see specialist courts as transformative, their overall contribution to reducing the prison population may be limited.

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Other Benefits One practitioner whom we interviewed argued that, even though statistics on effectiveness have limited value, it is “obvious” from attending mental health courts that defendants respond well to therapeutic justice. It should be remembered that, in traditional hearings, most defendants are represented by lawyers, so the charge that there is no opportunity to have their say, or that they cannot understand proceedings, can be exaggerated by researchers seeking to make a political point about inequality or disadvantage. Nevertheless, proponents of therapeutic justice strongly believe that it is possible to treat defendants with more dignity and humanity. In addition, there is more acknowledgement and recognition of the psychological and social factors that cause offending. These factors may be mentioned in conventional hearings but there is rarely time to discuss the various mitigating factors that may explain the offence at any length.

Conclusion Although pretrial services receive less attention from academic commentators than either restorative justice or therapeutic jurisprudence, they are arguably the initiative that has the greatest potential to make a difference to recidivism rates. In some American States, diversion has resulted in a large reduction in the remand population.5 Whether taking discretion from the judiciary and making decisions using risk factors would have a similar effect in Australia is unknown. It is also possible that a more systematic and scientific approach to bail would make it harder for magistrates to make mistakes when hearing applications by high-risk defendants. Whereas specialist courts keep a few defendants out of prison, this initiative might result in a substantial reduction in the remand population. Pretrial services are also interesting because they separate the issue of social need from moralistic concerns that arise when sentencing.  See VanNostrand and Rose (2009). It is sometimes difficult to identify from these studies the extent to which the remand rate has fallen or whether this has reduced the overall imprisonment rate. 5

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Restorative justice and therapeutic jurisprudence are concerned with getting defendants to undergo a psychological transformation based on admitting guilt. By contrast, the term “pretrial services” indicates a non-­ judgmental approach towards crime. The program in Victoria provides defendants with case workers and supplies housing on the basis of need. Defendants are encouraged to attend drug treatment programs whether or not they have pleaded guilty. One could argue that the net effect is that defendants with particular problems receive help immediately, rather than waiting until they are sentenced two or three months later. Moreover, due to this support considerably more defendants are released on bail, resulting in a net saving for the tax payer. Most criminal courts in Australia have not moved in this direction. This invites two questions. The first is what holds back most States from backing welfare initiatives, or alternatively what makes reform possible? Progressive initiatives have been pursued in Victoria but also in States with much smaller populations, such as Tasmania and South Australia, at a time when government funding for existing services has been reduced. A second question is how bail decisions are currently made. It is worth considering how, in the absence of an integrated system, courts currently respond to what are often termed “vulnerable” defendants or those with higher welfare needs. These questions can be addressed through considering the development of policies and legislation, and interpreting statistics. This study is perhaps distinctive in describing day-to-day work relating to bail in criminal courts in four States using ethnographic methods. This makes it possible to see the problems, but also why it will be hard changing “business as usual”.

References Baughman, S. 2018 The Bail Book: A Comprehensive Look at Bail in America’s Criminal Justice System. Cambridge University Press, Cambridge. Beccaria, C. 1995/1764 On Crimes and Punishment. Cambridge University Press, Cambridge. Bell, E. 2011 Criminal Justice and Neoliberalism. Palgrave, London. Braithwaite, J. 1989 Crime, Shame and Reintegration. Cambridge University Press, Cambridge.

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Burns, S. and Peyrot, M. 2003. “‘Tough love’: Nurturing and coercing responsibility and recovery in California drug courts”. Social Problems. Vol. 50, No. 3, pp. 416–438. Butler, T. and Allnutt, S. 2003 Mental Health among NSW Prisoners. Corrections Health Service, Sydney. Castellano, U. 2011 Outsourcing Justice: The Role of Non-profit Caseworkers in Pretrial Release Programs. Lynne Rienner, Boulder, CO. Clark, J. and Henry, D. 2003 Pretrial Services Programming at the Start of the 21st Century. US Department of Justice, Washington DC. Clear, T. and Frost, N. 2014 The Punishment Imperative: The Rise and Failure of Mass Incarceration in America. New York University Press, New York. Cunneen, C. and White, R. 2007 Juvenile Justice: Youth and Crime in Australia. 3rd Edition. Oxford University Press, Melbourne. Cunneen, C., Baldry, E., Brown, D. and Schwartz, M. 2013 Penal Culture and Hyperincarceration: The Revival of the Prison. UNSW Law Research Paper No. 2014–19. Daly, K. and Hayes, H. 1997 “Restorative justice and conferencing”. In A.  Graycar and P.  Grabosky (eds.) The Cambridge Handbook of Australian Criminology. Cambridge University Press, Melbourne, pp. 294–311. Department of Human Services 2005 The CREDIT Bail Support Program. Victorian Government, Melbourne. http://docs.health.vic.gov.au/docs/doc/ A69711BC8E6A78DFCA25789600025ADF/$FILE/credit-bail-support. pdf. Accessed November 2018. Donnelly, K. 2015 Adolphe Quetelet, Social Physics and the Average Men of Science 1796–1874. University of Pittsburgh Press, Pittsburgh. Donnelly, N. and Corben, S. 2018 Evaluation of the Bail Assessment Officer (BAO) Intervention. Crime and Justice Bulletin No. 209. NSW Bureau of Crime and Statistics and Research, Sydney. Donoghue, J. 2014. Transforming Criminal Justice? Problem-Solving and Court Specialisation. Routledge, London. Drakeford, M., Haines, K., Cotton, B. and Octigan, M. 2001 Pre-trial Services and the Future of Probation. University of Wales Press, Cardiff. Durkheim, E. 2014/1873 The Division of Labour in Society. Free Press, New York. Farrington, D. and Welsh, B. 2012 The Oxford Handbook of Crime Prevention: Towards a New Crime Policy. Oxford University Press, Oxford. Foucault, M. 1995/1975 Discipline and Punish. Vintage, New York. Freiberg, A. 2010 Post-adversarial and post-inquisitorial justice: Transcending traditional penological paradigms. Monash University Research Paper No. 2010/17. Melbourne.

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Garland, D. 2001 The Culture of Control: Crime and Social Order in Contemporary Society. Chicago University Press, Chicago. Garland, D. 2018/1985 Punishment and Welfare: A History of Penal Strategies. Quid Pro Books, New Orleans. Hannah-Moffat, K. and Maurutto, P. 2013 “Shifting and targeted forms of penal governance: Bail, punishment and specialized courts”. Theoretical Criminology. Vol. 16, No. 2, pp. 201–219. Horn, D. 2003 The Criminal Body: Lombroso and the Anatomy of Deviance. Routledge, London. Hucklesby, A. 2003 Bail Support Schemes for Adults. Policy Press, Bristol. Johnstone, G. 2013 A Restorative Justice Reader. 2nd Edition. Willan, Cullompton. Magistrates Court of Tasmania 2008 Tasmania’s Court Mandated Drug Diversion Program: Evaluation Report. Magistrates Court of Tasmania, Hobart. Martinson, R. 1974 “What works? Questions and answers about prison reform”. The Public Interest. Vol. 35, pp. 22–54. Ministry of Justice 2012 Restorative Justice Action Plan. Ministry of Justice, London. Nolan, D. 2001 Reinventing Justice: The American Drug Court Movement. Princeton University Press, Princeton. Robinson, A and Bartkowiak-Théron, I. 2014. “Policing Youth Curfews: the ‘Wee Willie Winkie’ model of enforcing bail conditions”. Australasian Policing. Vol. 6, No. 2, pp. 10–14. Sturz, H. 1963. “The Manhattan Bail Project: An Interim Report on the Use of Pre-Trial Parole”. New York University Law Review. Vol. 38, pp. 67–95. Travers, M. 2012 The Sentencing of Children: Professional Work and Perspectives. New Academia Press, Washington DC. VanNostrand, M. and Keebler, G. 2009 “Pretrial risk assessment in the Federal Court”. Federal Probation. Vol. 73, No. 3, pp. 3–28. VanNostrand, M. and Rose, K. 2009 The Virginia Pretrial Risk Assessment Instrument. Virginia Department of Criminal Justice Services, Virginia. http://www.pretrial.org/download/risk-assessment/VA%20Risk%20 Report%202009.pdf. Accessed November 2018. Wacquant, L. 2009 Punishing the Poor. Duke University Press, Durham NC. Winnick, B. and Wexler, B. 2003 Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts. Carolina Press, North Carolina.

3 Researching Bail Practices

Criminology has an impressive record of achievement as an interdisciplinary field in publishing high-quality empirical studies, over a long period of time, about crime and criminal justice. Nevertheless, there is still some way to go in employing a full range of methods to a high standard (Genn et al. 2006; Gadd et al. 2011). One criticism, at least from a sociological perspective, is that most government funding has supported quantitative projects. Although this is starting to change, too few qualitative studies are published in criminology journals. Relatively few methods and theories are employed, and qualitative methods are often treated as preparatory to addressing quantitative questions. While there is some truth in these criticisms, they tend to discount what can be gained from working in an interdisciplinary field. In recruiting a research group to study bail, we were encouraged by a government agency to combine quantitative and qualitative methods and to bring together different disciplines, including law, sociology and psychology.1 Looked at negatively, there is a mixing of perspectives, perhaps a lowest common denominator approach, and no one is really satisfied. But it is  Two members of the research group, a psychologist and sociologist, had experience of evaluations and modelling sentencing decisions. Other members had backgrounds in qualitative sociology and anthropology. They had conducted fieldwork studies in different criminal justice agencies. 1

© The Author(s) 2020 M. Travers et al., Rethinking Bail, https://doi.org/10.1007/978-3-030-44881-3_3

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possible to see the project in positive terms, as a creative interchange between different disciplinary perspectives that results in new insights. There are fundamental philosophical differences between quantitative and qualitative researchers that can make combining methods quite difficult. Let us give an example. In the quantitative tradition it makes sense to look for causal factors that shape and determine human behaviour. In the qualitative tradition one views these procedures as reductive and misleading through not recognizing agency and free will. It is, however, appropriate in an applied field such as criminology to focus on what each approach can discover, and how it addresses practical questions, rather than engaging in philosophical debate and argument. This chapter will outline the methods employed in the quantitative and qualitative parts of the study, focusing on the existing literature (since the best research builds on previous achievements), conceptual considerations and the approach we employed in collecting data. We will also discuss the practical challenges, epistemological debates, some ethical issues and the value of mixed methods research in contributing to policy debates about bail.

Quantitative Methods Most research on bail internationally has employed quantitative methods to address questions relevant to political debates at that time. Some studies have argued for a tougher bail policy through identifying what is claimed to be a large amount of offending on bail (e.g., Morgan and Henderson 1998). Other studies have identified what seems to be unfairness towards defendants, for example the large number who spend time in prison but ultimately receive a non-custodial sentence (e.g., New South Wales Law Reform Commission 2012). There is also a US research literature funded by the pretrial movement that seeks to demonstrate the predictive value of risk factors (e.g., VanNostrand and Rose 2009). This has been used to support reform to the bail system in the USA. It seeks to show that most defendants meet bail even if they cannot post a bond. It should be acknowledged, from the outset, that any of these studies can be criticized on methodological grounds. Good science is always reflexive and self-critical, so this is not meant as criticism of studies that

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recognize their own failings. Nor should we complain about the partisan or interested character of much research about the criminal justice process, provided researchers are aware that there is the possibility of bias. Perhaps the greatest problem when conducting research about criminal justice, when compared to other areas of government policy, is that the statistical data one might need to ask many questions is not available, or has only been collected in particular places at particular times. The data is often unreliable,2 and the challenges in making comparisons (necessary to construct scientific theories) considerable.3 Looked at cynically, practical difficulties in getting access to data may suit the purposes of various agencies that often have little interest in reform initiatives or resources to collect data. The consequence is that there is relatively little public scrutiny or discussion of their routine practices other than occasional Royal Commissions that rarely draw on criminological research.4 Government departments and agencies view quantitative methods as offering the most valuable information in developing or evaluating policy initiatives. This does not mean they have no interest in other types of data. However, they place most weight on quantitative findings. Certainly, most bail research has employed quantitative methods. The majority of contributions advance different political readings of official statistics. In Australia, there are annual reports by the Australian Bureau of Statistics on the remand populations in different States. It is possible to see

 An example from Australia illustrates this problem. The State of South Australia appears to have a high remand rate, but an unknown proportion of defendants are released into home detention, wearing electronic tags. It cannot easily be compared with other states. 3  Consider how to compare the remand population as a proportion of the prison population in Victoria and other states. When we conducted a pilot study in 2014, the proportion of remand prisoners in Victoria was considerably lower. Since then, the remand population has soared, but the criminal justice system remains more welfare-oriented than in other States. Statistical information, while always helpful, requires careful interpretation and contextualization. 4  There is a larger amount of empirical research led by practitioners, working with university researchers, in schools and hospitals than in the criminal justice system. 2

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variations in these data, and also a dramatic increase over time.5 There are also some studies by criminologists that have involved collecting data through agencies (e.g., Sarre et al. 2006). A common objective is to provide objective information that will persuade policy-makers towards certain outcomes, while recognizing that the questions are informed by different assumptions or addressed to different constituencies.

Previous Studies The vast majority of quantitative research has been conducted in the USA and is concerned with risk analysis (see Chap. 7). Studies elsewhere draw on different types of access to statistical data. In the UK, there have been studies based on assistance from magistrates courts that show different “court cultures” suggesting the need for greater consistency in decision-­ making (Huckleberry 1996). In New South Wales, a study based on data obtained from courts claimed to show that defendants who had been in custody, sometimes for long periods, ultimately received non-custodial sentences (New South Wales Law Reform Commission 2012). Another study, funded by the police and Department of Justice in Queensland, sought to demonstrate (using a large data set supplied by these agencies) that there is no bias towards Indigenous defendants (Sanderson et  al. 2011). Another study in New South Wales by an independent research agency claimed to show that tougher bail laws had limited effect on bail decisions (Weatherburn and Fitzgerald 2015). Then there are evaluative studies about programs that analyse internal data and, on the rare occasions they are made public, usually report positive outcomes. Studies that employ observational data require only limited help from agencies, but can be effective in addressing or raising policy questions. Allan et al. (2005) is a good example from Australia based on observing bail applications. Some of the variables recorded were probably obtained  We know, for example, that the rate of defendants remanded in custody per 100,000 of the population doubled from 18.9 in 1998 to 38.3 in 2011 (New South Wales Law Reform Commission 2012). National statistics also report the rate of granting bail in different states. In 2011, it was hardest to obtain bail in South Australia and New South Wales (Brown 2013). The remand rates per 100,000 were, respectively, 52.1 and 49.1. The States in which it was easiest to obtain bail were Tasmania (21.5) and Victoria (19.6). 5

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from the court or practitioners, such as the exact nature of the charges. However, a great deal of information such as the type of argument made by defence lawyers (or whether an argument was made) was recorded by observing applications. Similarly, a study funded by the Canadian government in the early 1990s found, through observing bail courts, that there were numerous adjournments (Myers 2009). This partly explained the increased time spent by defendants on remand.

Conceptual Issues Quantitative research that aspires to be scientific depends on objective measurement and representative samples. Descriptive statistics are viewed as valuable in overcoming the limitations of individual cases. For example, a qualitative study might find an example of a defendant who has spent a long period in prison before receiving a non-custodial sentence. A quantitative study, based on a representative sample, would be more convincing. Because they aspire to be like natural scientists, criminologists who employ these methods often also seek to make causal findings. For example, they might want to test the hypothesis that some factor or circumstance leads to a greater likelihood of a defendant being refused bail. The difficulty lies in identifying and measuring truly independent variables and obtaining truly representative samples (Lieberson 1987). Even sophisticated risk analysis studies have been criticized for analysing “contaminated” variables in order to produce positive findings.

Our Approach Our study is based on observing 150 bail applications in four States. This is a small number for the purposes of asking some questions, such as whether the refusal rate differs between States. Fortunately, we already have official statistics that answer this question. Whether or not such samples are representative by the standards of a scientific study, the descriptive statistics in this study should assist policy-makers. We were unable to obtain information about outcomes in relation to particular

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defendants. This means that we cannot confirm or criticize the findings of other studies about punitive bail decisions made for defendants who will not ultimately receive a custodial sentence. We can, however, report the rates of bail refusal in our sample across the four States (see Chap. 5) and the proportion of defendants that have a vulnerability (see Chap. 6). There are two challenges that arise when conducting observational research in courts, if one aspires to meet scientific standards in quantitative analysis. The first is obtaining an adequate sample. To give an example, our pilot study in Tasmania was based on observing forty applications in the bail court that took place on Mondays or on the Tuesday after a public holiday.6 Only one application by a defendant who was homeless was observed. It may be that such applications are rare in Tasmania.7 Another example is that when we visited South Australia, we observed the work of a magistrate who did not employ deferred orders in those hearings. Perhaps this had something to do with the type of applications. Or perhaps this magistrate did not use the orders. To be sure, practitioners, such as defence lawyers, could probably report on the preferences of different magistrates, but it might be difficult to make a scientific finding. The more difficult problems arise from measuring variables. Some information is not available to observers. Perhaps the real causal variable here would be how the magistrate views the seriousness of the offence, which is not usually mentioned in hearings. It would be difficult to propose a scientific theory about bail decisions without more information. Different problems arise when one tries to identify a variable such as “vulnerability”. Our approach in this study has been to adopt the most generous interpretation possible. If any information available from  Observation in Tasmania took place in January and February 2014, July to September 2014, and January 2015, through twenty days of court visits. The whole study across four States involved observing 150 applications: 58 in Tasmania, 29 in South Australia, 37 in Sydney and 26 in Victoria. Six short visits were made to Sydney, South Australia and Victoria between June 2017 and April 2018. 7  In the Tasmanian pilot study, we would estimate that an average of eight bail applications were heard each week, two on Monday or the Tuesday after a public holiday in the lock-up court (on some days there were six or more applications, and on others no applications), and six at various times during the rest of the week. In one year, of say 50 weeks, there would be 400 applications. In 2014, we observed about thirty hearings in the lock-up court, and in 2015 about ten hearings (perhaps 10% of the annual applications). It would, however, be a mistake to see any hearing observed as unrepresentative or misleading. Observing 40 applications gave a good understanding of the routine work involved in making bail decisions in this court. 6

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hearings seems relevant, we have recorded this as a “vulnerability”, whether or not this appears to inform the decision-making. This might seem to indicate bias in a similar way to other studies. But it should be noted that, even if a much smaller proportion of defendants have vulnerabilities, this still supports a case for pretrial services. We explore these issues in Chap. 6.

Qualitative Methods Although the quantitative tradition remains dominant in criminology, there is increasing acceptance that it is also valuable to employ qualitative methods such as interviewing and ethnography. These mainly have an auxiliary role and are only employed to collect a limited amount of data, but there has also been funding for more developed qualitative studies. One way of understanding our objectives is that we would ideally want to understand the institutional processes that result in statistical outcomes. There are obviously all kinds of complex processes that constitute the different agencies and institutions in the criminal justice system. It is not easy to understand the processes. Difficulties in obtaining quantitative data might be expected, given how the criminal justice system is structured around several agencies with little central coordination. They each collect information for their own purposes, so that it is difficult to track outcomes. What is perhaps surprising is that there have been almost no qualitative studies that describe bail decision-making in any depth.8 There is an ethnographic literature about most aspects of the criminal justice process, including policing, sentencing, plea bargaining and most recently the specialist courts, but we can find no research about bail. To conduct qualitative research well requires an understanding of the practical issues that arise in particular cases as are understood by practitioners (see, e.g., Burns 2000; Hinton 2019). This means that one well-­ documented case study, even of a short episode of work, in which one has  For a discussion of the value of qualitative research in criminology, see Travers et al. (2013a) and Copes and Miller (2015). 8

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access to documents, and obtains an understanding of the context and objectives from practitioners, may be more valuable scientifically than observed legal hearings. That said, it is possible to understand legal practice over a long period through triangulating different types of qualitative data. In this study, data sets were obtained through observing court hearings, interviewing and in some cases “shadowing” practitioners (Bartkowiak-Théron and Sappey 2012).9

What Is Qualitative Research? Qualitative researchers seek to understand the meaningful character of social life. The issue was recently explained by Howard Becker in the following terms: I’ll use qualitative to describe research that pays attention to details and nuances of meaning in the varying kinds of material that make its subject matter and usually (not always) describes its data in words rather than numbers. Its primary data may be the researchers’ observations or more or less verbatim accounts of interviews, historical materials and so on. The researchers take the meaning of the material as something for them to discover, rather than as an unproblematic given. (Becker 2017, pp. 39–40)

There are different ways of investigating “the details and nuances of meaning”. These include observation and interviewing, and shadowing practitioners. There were also approaches we did not pursue, through either choice or the practical constraints of a project. We have not employed systematic techniques of discourse analysis, and we have not conducted full-scale ethnographies based on months of access to any agency. We review some technical and practical issues in employing these approaches in this section. However, too great a focus on particular methods may miss what is most distinctive about qualitative research. Becker argues that qualitative research is always exploratory:

 In this research project, it was not possible to make audio-recordings of legal hearings.

9

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Field researchers often start collecting information without having any plan beyond seeing what the people they are studying do in the course of their lives in a community, a workplace, or wherever else constitutes the starting point of the research. Whatever they see raises questions for them. Who is that? What is she doing there? What will happen next? Why did he say that? They start constructing provisional descriptions of patterns—of behavior, of ideas, of connections. As they watch, listen to, and converse with the people they’re studying, they have ideas, and they start to wonder if these ideas properly represent what they’ve seen. Is there more to see, more to know? Can they ask someone to explain something they don’t understand? (Becker 2017, p. 207)

Quantitative research is also exploratory in looking for patterns and questions in statistical data. But after an initial period, there is a data collection instrument and a systematic approach that results in correlations as “findings”. The idea of moving around social settings, making observations and following leads, and never seeing everything because one only happens to be there on a Monday, may seem the opposite of scientific inquiry. Yet this is how we conducted our ethnographic fieldwork in courts.

Observation of Court Hearings A magistrate who supported our project observed that it might be nice to have a study that provided examples of how the court responded to different defendants instead of the usual dry statistical analysis. We set out to achieve this by visiting a number of metropolitan courts in the four States. We received advice from magistrates in each State how courts were organized. In Sydney, there was a dedicated bail court in Parramatta on Saturdays and Sundays. We were able to see a large number of applications through observing these courts. In the other States, the best day to see a number of bail applications was on Mondays. During the rest of the week bail applications from defendants in custody were allocated randomly across courts. It might be difficult to observe any applications in this ad hoc approach. But on Monday one could normally rely on a few bail applications in the main referral court. In Tasmania, there was a

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separate list, known as the “lock up” court, and that allowed profitable observations. The approach in hearings was to take as detailed notes as possible, while trying not to be conspicuous in a way that might disturb defendants or others in the room. Our researchers recorded the submissions made at hearings and the decisions made by magistrates. In a quantitative study, researchers often employ a check-list to record variables that are later analysed. In qualitative research, an observer comes away with pages of notes. In this book, we have written up some of these observations as examples. Although we did not have access to the documents consulted during hearings, such as the prior record of defendants, we could hear practitioners talking about these issues. Qualitative data obtained from observing legal hearings makes it possible to describe how bail decisions are made. It is also valuable in illustrating processes that are concealed in statistical accounts. The recording techniques employed in this study have been influenced by a sociological approach known as “conversation analysis”.10 The objective was to understand and document the issues in each application that were relevant to practitioners, and it was often possible to make a good record of what was said in hearings. The main difficulty is that only part of the information that one might need to understand the issues as an outsider is available from listening to the court proceedings. The limited information available from hearings causes difficulties for those conducting quantitative or qualitative research. A good example is the defendant’s prior record. This can become relevant to a bail decision in a number of ways. It was also formally built into hearings. At the start, the prosecution normally handed a list of priors (the defendant’s prior offences) to the defence lawyer and also to the defendant who was asked to check them for accuracy. These priors were then given to the magistrate who read them carefully and often referred to particular prior offences briefly in giving the decision on the bail application. The observer cannot, however, see the details of the previous  It is most influenced by the studies of work tradition in ethnomethodology (see, e.g., Rouncefield and Tolmie 2011). Researchers have combined ethnography with discourse analysis in examining the content of technical and professional work. Conversation analysts examine language-use in more detail, drawing on audio-recordings as their main source of data. 10

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offences. It is also possible that when a magistrate did not refer to the priors, they were still relevant to the decision. Similarly, the nature of the original offence committed was also often unclear. In the case of a new offence, the prosecution gave details and the defence lawyer commented on the strength of the evidence. In Victoria, the police “informant” gave evidence at the hearing and was cross-­ examined. Many applications were, however, made after the defendant had committed breaches of bail. In these applications, the allegations made in relation to the original offence were normally not reviewed. Initially, we assumed that the summary of the original case was not handed to the magistrate. But we now understand that prosecutors always attach the summary to the details of the fresh offence. It is possible that perceptions of the seriousness of the original charge, or the strength of the prosecution evidence, influenced the magistrate. This means that, however complete the notes taken in court, the researcher only has a partial understanding of the background to the case and how a bail decision is made.11 Court ethnography is distinctive as a type of ethnography because it draws on the public character of legal hearings. It is possible to get blocked by different agencies en route simply because they are too busy to assist. They may not agree to interviews, and it is not normally possible to obtain access to legal files. No one, however, can prevent a researcher from sitting at the back of a courtroom and taking notes. Even so, there was one court where we experienced difficulties. In South Australia, observing hearings is possible provided that one is sponsored by an appropriate agency. However, one needs to apply to the magistrate for permission. It was also suggested that a researcher had to demonstrate more than sponsorship, but also had to be working in the agency (“You are not a police officer”). This targeting of researchers has a potentially chilling  One way of resolving this interpretive difficulty would be to ask the magistrate how he or she reached this particular decision. This would, however, be practically difficult for two reasons. First, magistrates do not like reviewing decisions. Second, such questions are informed by a naïve view of how people make decisions in many professional occupations. They do not weigh up factors systematically and have no time to do this. Nevertheless, they arrive quickly at a decision and often give reasons. See Chap. 7 for discussion of psychological and sociological literatures on how magistrates exercise discretion. 11

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effect given that it may reveal to a court that a researcher is taking notes.12 There is no legal basis for excluding researchers from ordinary Australian courts. It should be added that a version of this local rule was applied in a rather arbitrary fashion by Sheriff’s officers responsible for security in these courts. We may have been unlucky in that a particularly diligent officer was on duty for part of the visit.

Interviewing We conducted full audio-recorded interviews with several practitioners. In some cases, magistrates were interviewed after hearings and asked about specific cases. Most interviews were about general considerations in making decisions or representing clients. We also interviewed welfare practitioners working for NGOs who had an interest in bail. The Court Integrated Services Program in Victoria kindly arranged a group interview with case workers. We also interviewed some managers or civil servants with policy interests. For example, it became possible in Tasmania to interview an ex-senior police officer who provided some insight into the considerations involved in granting police bail. We also interviewed policy officers in two states, and discuss their work in Chap. 9.

Shadowing Arguably, the best method to employ in understanding legal work during a court ethnography is shadowing (Bartkowiak-Théron and Sappey 2012). It cannot give anything like the insights one could obtain through spending several months in an agency. Nevertheless, it often gives more contextual detail than interviewing, although normally the practitioner has little time to assist the researcher. In this study, it was possible to shadow prosecutors for three of the days in which a researcher observed the lock-up court. It was also possible to shadow defence lawyers during  Some may feel that there is something unethical about pursuing “covert” observation in courtrooms. However, court rooms are public places. Everyone in these legal hearings knew that they were being watched from the public gallery and that the proceedings are recorded. 12

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an interesting visit to a Sydney court (“You have seen the underside of the city”). Despite this level of access, there was no time to conduct lengthy interviews before or after hearings with the practitioners responsible for those cases or to examine files. Nevertheless, being able to ask a few informal questions about specific cases, and receive answers, can add a great deal in an observational study. One important insight obtained from even a limited amount of “shadowing” is that practitioners do not have as complete understanding of what is happening as you might expect. This was recognized by Malcolm Feeley in his ethnography about a criminal court in New England: Prosecutor and defense attorneys organize their work so that much of it is done in frantic conditions: they must rely extensively on memory, hurried summaries, and oral recapitulations. They peruse case files rapidly, often skipping pages and overlooking important details. As a consequence, cases are confused and facts are forgotten or never learned. Material collected from files and considered by researchers under relatively leisurely conditions may not be the same ‘facts’ which were important in shaping a courtroom decision. (Feeley 1983, p. 151)

It was clear in our observations that decisions are quickly made. Magistrates draw on a few documents and rely heavily on the information they obtain from practitioners. Prosecutors only need to glance at a summary in the file. Defence “duty” lawyers report what they have just picked up from a very short meeting with a defendant. To go further than court observation or interviewing, one would have to record and understand how practitioners work in real time, which is not easy to do even when one shadows a practitioner. We will report some examples of practical work in Chaps. 4, 5 and 6.

Actions and Structure This review of research methods would be incomplete without some discussion of the theoretical assumptions that have informed this study. Broadly speaking, there are three ways of conducting inquiry in the

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human sciences that come from a commitment, explicit or otherwise, to different epistemologies (ways of producing knowledge). The first is positivism, the approach that informs investigation in natural science and is also influential in social science. Researchers are concerned with identifying objective facts and developing hypotheses that can be tested by quasi-­ experimental methods. Positivist or empiricist researchers tend to be politically conservative and, in the social sciences, have often understood institutions in functionalist terms. The second is realism, a tradition that assumes that one can find hidden causal mechanisms or determining structures. Researchers often have a critical purpose and seek to emancipate us from false assumptions that benefit dominant economic groups. The third is interpretivism, a general term for approaches concerned with action and meaning. There is a commitment to describing social life in some depth, paying attention to how people understand their own actions, instead of claiming to know more as a social scientist. In practice, most studies mix these frameworks. In an interdisciplinary project, debate cannot be avoided and is arguably beneficial in encouraging reflection and improving the quality of analysis. For example, when giving a talk about bail to critical criminologists, one of our researchers was criticized for only describing bail decisions at the individual level, rather than recognizing how collective groups such as the police influence outcomes. This leads into a long-running debate about the relationship between “micro” and “macro” levels of society, or the extent to which a researcher should recognize and address actions or structure. A good example of a structural ethnography about courts is Nicole Van Cleve’s Crook County (2016). This describes work in the courts, focusing on the ill-treatment of black and Hispanic defendants. Experiences at this micro level are explained through structural inequalities that constitute the USA. In addition, the ethnographer who had worked in the offices of a District Attorney and Public Defender described her experiences of everyday racism. Yet in this political account, we do not hear much about how practitioners understand their work. They do not see themselves as racist and understand the history of race relations differently to the researcher. Interpretive ethnographies aspire to examine a variety of perspectives and the practical content of work in more detail.

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Ethical Issues Considerable time and effort is involved in obtaining approval to conduct research from ethics committees, and this arguably reflects what has become a conservative and risk-averse climate (Van den Hoonard 2009). It is important in democratic societies that justice is seen to be done. For this reason, it should not be necessary for a researcher to obtain written consent from every defendant observed in a courtroom. Nevertheless, it seemed wise in our first approach to an ethics committee for this project to make an application arguing that courts are public places. Despite some frustrations, the process of applying for ethics approval is valuable. It forces the researchers to think carefully about these issues. In addition, a member of the committee with a legal background helpfully drew attention to the law in Tasmania that, unusually, makes it a criminal offence to report bail proceedings until the case has been finalized.13 One could argue that researchers should be given more access to closed institutions, such as prisons or detention centres, in order to protect the interests of vulnerable defendants. In this study, we were only looking for assistance from magistrates, prosecutors and Legal Aid lawyers, ideally audio-recorded interviews about practice that could be shared. In addition, we hoped to interview a range of practitioners who provided services at the pretrial stage. One difficulty was that practitioners had little time, and policy-makers were generally reluctant to express personal views. Another reason is that the interview is not always a good way of investigating work practices. Ethnography, in the sense of spending time-­ observing practice, is the best way to learn about professional work and perspectives in different fields.14 Most ethical issues relate to balancing the benefits that arise from conducting research against the potential harm. It is hard to think of harm that might result from an anonymized study. Nevertheless, one can  Under s37a of the Justice Act 1959 (Tas), it is an offence to report any details of a bail application, until the case has been finalized, other than the fact the application was made by a named applicant. This restriction on reporting does not apply in other states. 14  For discussion about how different qualitative methods can be employed in researching courts, see Travers (2001). 13

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experience ethical qualms as a researcher. One unfortunate development in the last twenty years is that it has become more difficult to feel that conducting research will result in change. We are, after all, in a period of rising imprisonment, cut-backs in welfare provision and growing inequality. If no benefits flow from observing people in difficulties, then observational research can feel like a voyeuristic activity. As a campaigner asked a researcher pointedly, “How is your heart?” This may, however, simply be a matter of perception, since there have been many recent positive developments as outlined in the previous chapter. There remains an ethical and scientific rationale for conducting research about the criminal justice system. Even though this is a modest project, based on research in four Australian States, it should raise awareness about pretrial services both in Australia and internationally.

The Value of Mixing Methods The best quantitative studies in criminology employ sophisticated techniques in analysing data sets. The best qualitative studies provide sufficient detail and context to make possible an in-depth understanding of professional work. It is also possible to combine these methods. Mixed methods research proved valuable in allowing us to triangulate findings (Denzin 1978). Interviews with practitioners improved our understanding of court hearings. The qualitative research strengthens the quantitative data by providing more detail on particular cases. Mixed methods research can be particularly valuable in addressing policy questions (Creswell and Clark 2017). We would argue that the combination of quantitative and qualitative methods employed in this study supports a case for pretrial services. We are also quite relaxed that some data is missing, and even that some agencies have been rather reluctant to assist. This strengthens our case that the criminal justice system is comfortable with business as usual and has not even taken the first steps to pursue long-term reform through measuring processes and outcomes. Missing data for our project includes the following:

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1. The number of bail applications made in the four courts. This information is not available from annual reports and illustrates the limited nature of statistical information available. 2. The remand rate for different offence types. Offence types are not recorded. 3. The proportion of applications in which defendants have a drug problem. 4. The average time spent by defendants refused bail before pleading or being found guilty. 5. The number and types of breaches of bail. 6. The number of defendants who spend more time in prison due to being refused bail than being sentenced for the substantive offence. This is key information you would need to make a case for court reform that might reduce imprisonment.15 7. The likelihood of a defendant with a particular risk profile not meeting bail, and how this compares with decision-making by magistrates. 8. Interviews with several magistrates, prosecutors and defence lawyers in each state. We only had permission to interview relatively few practitioners. 9. Greater access to professional work and pretrial programs. More positively, there are often multiple routes to understanding and documenting particular issues. An interview with a practitioner can, for example, assist in understanding some practice observed in a bail application. The researcher may never obtain a complete picture, but understanding develops over time through seeing more examples and meeting practitioners. Similarly, in policy research quantitative and qualitative approaches are complementary, provided researchers are not drawn into philosophical debates about how to produce knowledge.

 From the official statistics, we know that the remand prison population in Australia is growing at a faster rate than the sentenced prison population. But we do not know what is causing this increase. 15

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Conclusion Observing 150 hearings made it possible for us to make some descriptive quantitative observations about this limited sample. We hope to persuade policy-makers through observations about this sample, and also by suggesting how risk analysis could be developed if we had better access to official records. In the qualitative research, we will describe and appreciate the day-to-day, practical work in making bail decisions. In this tradition in social science, a well-described case study, even of a single legal hearing, makes it possible to understand business as usual and the opportunities for change.

References Allan, A., Allan, M., Giles, M., Drake, D. and Froyland, I. 2005. “An observational study of bail decision-making”. Psychiatry Psychology and Law. Vol. 12, No. 2, pp. 319–333. Bartkowiak-Théron, I and Sappey, J. 2012 “The methodological identity of shadowing in social science research”. Qualitative Research Journal. Vol. 12, No. 1, pp. 7–16. Becker, H. 2017 Evidence. University of Chicago Press, Chicago. Brown, D. 2013 “Looking behind the increase in custodial remand populations”. International Journal for Crime, Justice and Social Democracy. Vol. 2, No. 2, pp. 80–99. Burns, S. 2000 Making Settlement Work: An Examination of the Work of Judicial Mediators. Ashgate, Aldershot. Copes, H. and Miller, J. 2015 The Routledge Handbook of Qualitative Criminology. Routledge, New York. Creswell, J. and Clark, V. 2017 Designing and Conducting Mixed Methods Research. 3rd Edition. Sage, London. Denzin, N. 1978 The Research Act. McGraw-Hill, New York. Feeley, M. 1983 Court Reform on Trial: Why Simple Solutions Fail. Russell Sage Foundation, New York. Gadd, D., Karstedt, S. and Messner, S. 2011 The Sage Handbook of Criminological Research Methods. Sage, London.

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Genn, H., Partington, M. and Wheeler, S. 2006 Law in the Real World: Improving our Understanding of How Law Works. Nuffield Foundation, London. Hinton, M. 2019 “A bail review”. Adelaide Law Review. Vol. 40, No. 1, pp. 187–204. Huckleberry, A. 1996 “Bail or jail? The practical operation of the Bail Act 1976”. Journal of Law and Society. Vol. 23, No. 2, pp. 213–233. Lieberson, S. 1987 Making It Count. University of California Press, Berkeley. Morgan, P. and Henderson, P. 1998 Remand Decisions and Offending on Bail. Home Office, London. Myers, N. 2009 “Shifting risk: Bail and the use of sureties”. Current Issues in Criminal Justice. Vol. 21, No. 1, pp. 127–147. New South Wales Law Reform Commission 2012 Bail. Report 133, NSWLRC, Sydney. Rouncefield, M. and Tolmie, P. (eds.) 2011 Ethnomethodology at Work. Ashfield, Ashgate. Sanderson, J., Mazerolle, P. and Anderson-Bond, T. 2011 Exploring Bail and Remand Experiences for Indigenous Queenslanders. Griffith University, Queensland. Sarre, R., King, S. and Bamford, D. 2006 Remand in Custody: Critical Factors and Key Issues. Trends and Issues in Crime and Criminal Justice (No. 310). Criminology Research Council, Canberra. Travers, M. 2001 Qualitative Research Through Case Studies. Sage, London. Travers, M., Putt, J. and Howard-Wagner, D. (eds.) 2013 Special Issue on Ethnography, Crime and Justice. Current Issues in Criminal Justice. Vol. 25, No. 1. Travers, M., Putt, J. and Howard-Wagner, D. (eds.) 2013a Special Issue on Ethnography, Crime and Justice. Current Issues in Criminal Justice. Vol. 25, No. 1. Van den Hoonard, W. 2009 Walking the Tightrope: Ethical Issues for Qualitative Researchers. University of Toronto Press, Toronto. Van Cleve, N. 2016 Crook County: Racism and Injustice in America’s Largest Criminal Court. Stanford University Press, Stanford. VanNostrand, M. and Rose, K. 2009 The Virginia Pretrial Risk Assessment Instrument. Virginia Department of Criminal Justice Services, Virginia. http://www.pretrial.org/download/risk-assessment/VA%20Risk%20 Report%202009.pdf. Accessed November 2018. Weatherburn, D. and Fitzgerald, J. 2015 “The impact of the NSW Bail Act (2013) on trends in bail and remand in New South Wales”. Issue paper no. 106. NSW Bureau of Crime Statistics and Research, Sydney.

4 Professional Perspectives

To enable the reader to reach a view about business as usual, the next three chapters will describe some aspects of work in criminal courts at the pretrial stage. In this chapter, we will focus on the bail system and introduce different professional perspectives. The next chapter will examine how discretion is employed in practical day-to-day work. In Chap. 6, we will describe how the courts respond to defendants with different vulnerabilities.

The Bail System The term “bail system” is misleading since it implies a large degree of systemic coordination between different agencies and even central direction. The agencies that make bail decisions are loosely coordinated within a legislative framework, but there is no central manager. In some senses, the organization is being produced through people working collaboratively to understand the case at hand and take action that moves this forward. One magistrate started each application by asking the prosecutor and defence lawyer, “What do you want me to do with this?” Together they worked out what could be done with the available information. © The Author(s) 2020 M. Travers et al., Rethinking Bail, https://doi.org/10.1007/978-3-030-44881-3_4

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Nevertheless, practitioners in different agencies can also be understood as working in a complex, rule-governed system that constrained their actions, while allowing considerable discretion.

An Overview Figure 4.1 indicates the complex, often recursive character of decision-making. The key decision-makers are not magistrates but police officers. They make bail decisions after someone has been arrested and charged with an offence. They make decisions when offenders on bail are charged with new offences. And they also make decisions on whether to bring to court defendants who have missed hearings or are in breach of conditions such as curfews. There were small, but significant, procedural differences between States. Some researchers have tried to use these to explain statistical variations in remand rates. It has been argued in relation to South Australia that the police often refuse bail, and that courts simply agree with the police decision (Sarre et al. 2006). Even though many police decisions are overruled, this is the exception rather than the rule and this results in a high remand rate. The same study has argued that the procedural requirement in Victoria for police officers to give oral evidence in subsequent bail applications deters them from refusing bail in the first instance. The

X

Police Y Justice of Peace Fig. 4.1  The bail process

Court

Y

X

Breach of bail

Sentencing

X = Bail granted/ Y= Bail refused

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success rate for applications in court may be similar, but the overall result from fewer applications being opposed is a low remand rate.1 The police, like other agencies, are working in a system established by legislation and following both these guidelines and internal policies. An ex-police officer interviewed in Tasmania reported, when pressed, that very few defendants in this State, other than those charged with offences relating to domestic violence, were refused police bail. This was because the legislation had a presumption in favour of bail, and police officers followed the law. Individual officers could not take a hard line because prosecutors knew that bail would be granted by magistrates. By contrast, when observing bail applications in Adelaide, Sydney and Melbourne, it was apparent that even defendants who had committed minor offences were refused bail by the police and sent to court. Two other aspects of the process are worth mentioning. Those defendants observed in the lock-up court on Monday mornings (or on Tuesdays after a public holiday) had all appeared before the equivalent of a Justice of the Peace over the weekend. Each State had a different arrangement. In Hobart and Adelaide, Justices of the Peace made bail decisions. In Sydney, magistrates or retired magistrates heard applications in weekend bail courts. In Melbourne, the procedures had changed following the Gargasoulas case. Previously, bail justices had reviewed police decisions at police stations. The court had since stopped using bail justices. Instead, magistrates and retired magistrates sat in weekend and night hearings at the central court. Refusal of bail in night or weekend courts was not automatic, but bail was refused in two-thirds of applications (personal communications). This may be because Justices of the Peace, or even retired magistrates, are reluctant to take risks. However, there are other practical reasons. The defence lawyer was often not present at the hearings (after-hours work was not always covered by Legal Aid). It also took time preparing an effective application, for example by obtaining a surety. One lawyer told us that inexperienced defendants would always instruct them to make a bail application at the first opportunity, even if this could be stronger. In New South Wales, an unsuccessful application increased the time on  This does not explain why the remand rate in Victoria has since increased.

1

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remand, since there were stricter rules against making additional applications without a change in circumstances. Decisions by magistrates can be appealed to a higher court. Procedures again differ in different jurisdictions. In Tasmania, a fresh application is made to the Supreme Court through submitting a form in which the arguments for granting bail were made in writing. There was no Legal Aid for assistance in these appeals, but some defendants obtained help from “old hands” inside Risdon Prison. Our understanding is that many appeals were successful, and there were so many appeals that this led to administrative problems in scheduling sufficient hearings. By contrast, it was difficult to succeed in a fresh application in South Australia and more difficult to apply since the defendant had to supply an affidavit (personal communication).

Some Quantitative Measures It is not possible to pursue a sophisticated causal analysis about bail with the limited statistical information available from courts and other government agencies. However, we were able to obtain some interesting descriptive statistics from our observational study. We found, like previous studies, that there were very few female defendants, and, in metropolitan courts, very few Indigenous defendants. The methods employed might considerably underreport bail applications by Indigenous defendants for a variety of reasons.2 In addition, we were able to see the Table 4.1  Acceptance rate Hobart Adelaide Sydney Melbourne Total

58 29 37 26 150

Accepted

Refused

30 23 22 11 86

28 6 15 15 64

 We only observed applications in central Metropolitan courts whereas most Indigenous defendants appear in courts in particular suburbs or in country areas. In addition, we only identified defendants as Indigenous when this was mentioned during the hearing. It is possible that many 2

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number of applications in our sample that related to new charges or to breaches of bail. We were also able to see how many applications were successful. Perhaps surprisingly in view of complaints by defence lawyers, bail was granted for approximately half (Table 4.1). The argument is sometimes made that most bail applications are refused due to a growing punitiveness caused by tough bail legislation (Brown 2013). But the data do not support this conclusion. Nor can we see evidence from Table 4.1 that some States are more punitive. When we look more closely at this data, it would appear that which magistrate makes the decision is more significant than other variables, even the seriousness of charges. This does not mean that the arguments made in the literature about growing punitiveness are wrong. It suggests the need to collect more data, and perhaps to observe a larger number of magistrates in each State. It is possible to identify other patterns simply through counting features of applications. We found, for example, that there was a relatively high proportion of “technical” beaches of bail. This means a breach when a new offence has not been alleged. Instead, a defendant has not attended court or breached a bail order in some way (Table 4.2). The most common breaches were failure to attend court and not meeting the conditions of a curfew. One could make a policy argument drawing on this type of quantitative information. Through observing 150 Table 4.2  Breaches of bail

Hobart Adelaide Sydney Melbourne Total

Applications observed

Subst. offencea

Failure appear

Breach of curfew

Other breachb

58 29 37 26 150

34 15 18 22 89

9 5 9

5 4 3

23

12

10 5 7 4 26

A new offence or an offence committed on bail b This could include breach of a family violence order, breach of a home detention order (in South Australia) or breach of a condition not to take drugs or drink alcohol a

more defendants had an Indigenous background, and even that this influenced the decision without being mentioned. We discuss this methodological problem in Chap. 6.

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applications, we found that many defendants are charged with multiple offences. Yet few were what one might describe as “serial offenders”. Most offences allegedly committed while-on-bail related to domestic violence. According to these observations, one problem facing courts is that many defendants do not comply with bail conditions. Some defendants who were brought back to the court after failing to attend a hearing were refused bail.3

The Value of Interviewing Quantitative modelling only describes the bare bones of a decision-­ making system. It is valuable, even essential, in suggesting and addressing policy questions. But from a sociological perspective, it does not address the lived experiences of the practitioners who accomplish the outcomes in their day-to-day work. The best qualitative studies are based on one spending several months as an observer or participant observer in different agencies, and who have documented different aspects of work over a long period of time. Obtaining permission to pursue this kind of research has never been easy. There have been ethnographies published about the work of prosecutors (Frohmann 1991), defence lawyers (Heumann 1978; Emmelman 2003; Travers 2012) and magistrates (Anleu and Mack 2017). There have still been no studies that look at the work of magistrates or judges in the higher courts based on access to behind-the-­scenes work (although see Flemming et al. 1992). Although ethnographic studies about criminal justice agencies continue to be conducted in the USA, it has become difficult since the 1990s to pursue this scientific program. There are three difficulties that the researcher has to overcome. The first is that few researchers, whether funded on doctoral programs or by government grants, have the time to conduct lengthy periods of fieldwork. The second is that there is often greater reward for researchers who publish multiple journal articles than monographs (Fader 2018). There is almost a perverse incentive to collect  Perhaps supervision by pretrial services in Melbourne reduces non-appearances. To complicate matters, in some jurisdictions a technical breach is a criminal offence. It is possible to receive a short sentence of imprisonment, usually back dated, once the case is finalized. 3

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a limited amount of data quickly, and publish about this, rather than conducting a lengthy ethnography. The third is that criminal justice agencies have less time to support researchers. They have performance targets in the same way as researchers. In addition, criminal justice agencies operate in a more political environment and see less value in independent academic research.4 Fortunately, even though agencies can seem like closed institutions, it is possible to observe legal work in public hearings. In addition, it is normally possible to interview practitioners about this work. Collecting data through interviewing places few demands on practitioners or on researchers. It is also acceptable to agencies who are concerned about protecting institutional practices from close or systematic scrutiny. Clearly, considerably more information could be obtained through observing practitioners at work, and interviewing them, over a long period. We do not, however, want to discount the value of interviews. Speaking to someone about their work can reveal a great deal. In this chapter, we get more than a glimpse of the routine character of work in bail hearings and different professional perspectives. There are other ways of representing this work in terms of statistical outcomes, but interviews are valuable in conveying lived experiences that are often overlooked by legal and policy studies.

The Court Work Group This study is based on observing applications for court bail. The main work group for these decisions comprised magistrates, prosecutors, Legal Aid lawyers and defence lawyers in private practice. Although we did not spend much time inside the different agencies, we met some practitioners. Most understood their work entirely as business as usual. Their central concern was to get through each task, and the daily list, following legal rules and procedures. They did not have opinions on court reform,  We were told by a manager in one criminal justice agency that academic researchers had little to contribute to evaluations. This was partly because they tended to be critical, but also because they did not know what assessors required in reports. It was safer to employ management consultants who had worked for the government and knew exactly what was required. 4

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or at least did not share these views with the researchers. When interviewing, we were interested in how they accomplished their day-to-day tasks.

Magistrates Magistrates in Australia are ex-lawyers, and sit alone like a stipendiary magistrate in the UK, advised by a court clerk. They make bail decisions after hearing submissions from the prosecution and defence lawyers. The main information considered is the list of prior offences. These include breaches of bail and the prosecution summary of the substantive offence and details of a breach. In Victoria, the investigating police officer gives evidence and is cross-examined by the prosecutor. It was also common for the prosecutor to supply video evidence, when appropriate, to strengthen an application. The magistrate reads the papers, which can take several minutes, and considers the arguments made by each side. Then the magistrate enters information about the bail conditions onto a computer system, and makes a decision as a public announcement, usually with reasons. The practical challenge often lies in processing the information quickly: You’ve only got five minutes to do it. You’ve got prior convictions that gives you a pretty good clue about their history. It might be one page or it might be 40 pages (laugh) and then you have all of their charges, all of their complaints. They might have different complaints against three different magistrates, half a dozen hearing dates spread around the place. Got to have a look at those and see where they are.

Bail decisions did not normally involve considering technical issues relating to law or procedures, but considering the risk factors suggested in legislation.5 A magistrate in Tasmania explained his work in the following terms:

 See Bartels et al. (2018) for an analysis of statutes in each state. In Tasmania decisions are governed by the common law case R v Fisher. 5

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M: I’ve been a magistrate for six or seven years and do not see anything has changed. Section 12 of the Family Violence Act in my lifetime is the only thing that has changed. I still do bail applications today the same way and by the same principles and things as I did six or seven years ago. I haven’t noticed any more or less bail applications. I: Are you distinctive in your style or approach to colleagues? M: I am told that I am more lenient than some others, that I grant bail a little more readily than some others, but not necessarily as readily as some others [laughs]. So I personally do not feel that I favour one way or the other in any particular case. I take every case as it comes. I don’t say, “This is family violence, you are going to get bail” or “This is an assault on a police officer, you are not going to get bail”. It’s just another charge and I weigh up all the factors that I need to. Magistrates know some defendants quite well because they regularly appear in court. This past experience may influence the bail decision, even though it is not evident in the hearing: I:

There must be some cases that seem clear cut, and others that are borderline. M: Yes, there is a gut reaction when you have a feeling just by knowing the person. They just keep coming back and you just know they will be right and will turn up in court. And so you just have that personal approach with some of them because they appear before you so often or, alternatively, they appear before you so often you know they will muck up. Other magistrates described their work as following their instincts, rather than attempting to be scientific: I find bail is almost an intuitive thing. You have a feeling a person is a risk. He has a history of offending. I look to the possibility of future offending.

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Although the magistrates interviewed did not give much away about decision-making, we know from observing hearings and talking to other practitioners that there are individual styles and approaches. Some magistrates carefully weighed up different factors in their remarks after hearing submissions from each side. Others cut off advocates during their submissions and granted or refused bail. Prosecutors and defence lawyers came to know specific preferences. For example, some magistrates never imposed a curfew or reporting conditions. Others saw value in these conditions. There were some magistrates who explained, at the start of each application, that they would be adopting a zero-tolerance approach. Others expressed clear views to interviewers about their approach towards certain conditions.6 For example, one magistrate reported that he never used curfews and was generous towards a breach of curfew: I must say I’ve often questioned the worth of putting young people7 on curfews at night because it often sets them up to fail because they’re young, they’re bored, they’re probably unemployed, they tend to be night animals anyway. They turn up to court every time and they’re not reoffending. They’re just not around when the police knock on their door. They’re at their girlfriend’s place or their mate’s place or at the pub or somewhere. So quite often I will reduce those conditions. If they are turning up to court and they’re not reoffending why have those conditions on there? It just means the police have to go there three times a night and check them anyway.

This magistrate, instead, imposed reporting conditions to reduce the risk of reoffending: For me reporting conditions are a much better thing. It does not require police resources because the defendant has to go to the police station and just sign a register and go again. That’s done during the daytime. Most of these people tend to be night owls. When they breach a reporting condition, they are given more chances. I think more often than not magistrates  In law in action studies, researchers usually only succeed in interviewing a few judicial officers, often with a background in representing defendants. These practitioners are more research minded and more willing to talk about policy issues. 7  Many defendants were in their early twenties. 6

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will grant bail even though there are allegations that they are continuing to breach their bail. They are only allegations. They haven’t pleaded to them, they haven’t been found guilty of the offence, so they’re still entitled to the presumption of innocence. And until that’s been proved against them that gives a bit of a guiding light on these things.

This is one example of how a magistrate has developed his own policy for hearing bail applications.8 It is possible that another magistrate in that court might find imposing reporting requirements as onerous or setting up defendants to fail. Or there might be other magistrates, perhaps with backgrounds in prosecution work, who adopt a tougher approach in bail applications. They might, for example, have been more ready to impose curfews and to remand in custody if a “night owl” defendant was not at home during a police check. Finally, we can report that magistrates recognize that mistakes could happen: I: Are you concerned about the risk of making an error? M: Underlying it all, you do not want to wake up the next morning and find that someone was injured or shot because a magistrate bailed without proper consideration a person who is really violent or in a strange head space. Unlike some researchers, we would not see magistrates as experiencing emotional difficulties from making such apparently difficult decisions (Anleu and Mack 2017). Magistrates have to make hundreds of bail decisions each year. Because they never have complete information, they expect to make some mistakes. Very few defendants commit violent offences while on bail, but this cannot be predicted from their previous record, or any screening procedure.

 The extent to which local decision-makers can influence or make policy has received some attention from political scientists (Lipsky 2010). Although the information collected about decision-­ making practices in this study is limited, it seems clear that magistrates differ in how they apply bail legislation. 8

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Prosecutors Most prosecutors we met were police officers without any formal legal training. What is striking about this work to an observer is the number of files they process each day. Prosecutors arrive at court with two suitcases, or sometimes a large trolley with plastic storage containers on two levels. During the hearing, files for completed cases are removed from the bar table and put on the floor in piles. One prosecutor interviewed gave the impression that most defendants were given bail with standard conditions, and that the police accepted these decisions.9 They were most concerned about serious charges, when, if the defendant was bailed, they would make a fresh application to a higher court. The prosecution process involves a complicated system of record keeping. Researchers who have tried to obtain information suitable for quantitative analysis have reported tremendous difficulties since there are different data bases. One prosecutor provided this account of the information in files, and how bail and other outcomes were recorded in her jurisdiction: There’s a statement of facts [in the file]. It is from the police, from the investigating officer. It also has a copy of the priors. It has what we call a brief, which outlines the detail of the victims, the witnesses and it outlines what they were wearing at the time, nationality, and if DNA was taken. Also, hopefully, there will be statements depending on the type of offences. To make a bail application you just need the summary and what we have is what we call an offence report which is internal documentation that’s on our computer system. Eventually when the matters are finalised, we record the outcome on a data base. We used to write them in the file but there’s no need because what happens is the courts provide it to our intelligence service and they put it on the priors. So when we look it up in our system we can see they were convicted of this and then we’ve got another computer system that tells us  This observation that most bail applications were successful can be contrasted with our overall finding that half were granted. Perhaps the prosecutor meant that most applications in this court, or before this magistrate, were successful. 9

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what the actual charge said. The bail history is recorded within the file. So the court file keeps a record of when a bail application has been made and we as prosecutors write down if they apply for bail. We will write “defendant applied for not granted”, “opposed not granted” or “granted” or “not applied for bail” on our running sheets. And if you are refused bail in the magistrates court you can apply for bail in the Supreme Court to have bail granted to you. We send the file and they return it for our records after the application.

It will be apparent that the information that a researcher might want in tracking outcomes is located in a number of different data bases and files. The system gives the prosecutor what is needed at any point in the proceedings. However, it is possible, and even likely, that that information will be missing. The pressure of day-to-day institutional work was reported by prosecutors in different states. In simple terms, there is a large and growing pile of files each day to be cleared. A sense of the relentless work of sorting papers was conveyed in the following account: Q: What time do the officers get in for the handover? A: Well, I usually will come in by six, but I don’t officially start till seven thirty, and I don’t finish until officially four, but I might be here at four thirty, I might be here at five. So the day varies for me but then if I’m not here in the afternoon for whatever reason my regular people start at eight and they work till four thirty. So my office is covered 10 hours at least of the day, even though we are all supposed to be doing an eight and a half hour shift. Q: So when we got here in the morning on the first day, we saw these big piles of files. Where did they come from? We were here at nine o’clock. they had already been looked at for an hour? A: I always collect the mail in the morning, on a Monday morning I always need two police to give me a hand because it’s too much. So those files will come in from, we’re a feeder station, so they’ll come from [ ], they’ll come from here, they’ll come from [ ], they’ll come

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from [ ] which is our transit police. They will come from anywhere and everywhere. They’ll come from the bail courts on the weekend. So I go through the mail every morning so I know exactly what’s coming in, representations or correspondence. Q: So it sounds like you or someone else has read them all before we came in? A: The reason I come in at six is to get that changeover so I know exactly what’s happened the night before. Q: Often the arresting officer or the one who first deals with it will get that information together as part of building a case— A: Sometimes. If it’s a traffic matter quite often they won’t put the traffic record in there. So I’ll have to log onto the computer, find them, get the driver’s license and print up. I make sure all those folders when they go to court are complete. It’s very rare that they can actually put them together properly. To have a complete file, if you can split it’s half the battle. The very first day that I get trainees, they will spend at least three to four days just splitting. Q: This word “splitting” means going through the file and checking what’s needed— A: Going through the file. You separate the papers for the court and they go into one bundle. You separate the papers for the defence and they go into another bundle. However well the investigating officers prepare a file, it is not always in the right format to assist the prosecutor in court. This is why, early in the morning, prosecutors are printing off additional material from data bases and preparing bundles for court. This might again raise the question as to the possibility of mistakes in a fairly chaotic environment. Interviewees were frank about the difficulties: Q: We know things go wrong in any system and things have gone wrong with the prosecution process in New South Wales. Could you give an example where things go right and where things go wrong because of the sheer complexity of procedures?

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A: Things go wrong every single day. Q: They do? A: In order for me to do my job properly, I’m reliant on so many other people doing their job properly. From the preparation of the folder, before that we have the actual police allocating the right charges, and preparing their fact sheet to marry up with the charges. So by the time I get that folder it’s highly—well it’s more often than not they’ve screwed up something beforehand. So when I’m reading, I can see that doesn’t fit, that’s the wrong date, that’s the wrong indictment. We do a lot of fixing up. The following comments by a prosecutor about particular defendants who had not turned up for a court hearing indicate the routine character of decision-making. In the first case, the prosecutor accepted the proposal made by the defence lawyer to reissue a warrant (give the defendant a second chance) before the hearing. In the second, he had opposed bail but accepted the magistrate’s assessment that this should be continued. Applicant 1 So this was a warrant file. He has been to court a couple of times and then not turned up. It’s an illegal use [of a motor vehicle]. He didn’t have a lot of criminal history and really it’s just more a matter of getting him to court so as long as there’s an address and a reporting condition that would suffice. So my view is, I guess, [to re-issue the warrant] getting a feel for what the magistrate’s likely to impose, rather than stand there and argue about it. In my view, it was a reasonable outcome. Applicant 2 P: Yeah, so I guess my position is simply that he’s not a good candidate; he was already being supervised and has a lot of matters before the court. Well, their counter to that is that he is being supervised, he hasn’t reoffended with any fresh offending and as such, just let the status quo remain, i.e. at his court case day let this catch up with it, and roll along.

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I: So you feel you had to oppose because of the charges. P: Well, he’s got a shocking history, so I’d rather keep him in, all things being equal. But I can understand their position. I: Do you think other magistrates would have made a similar decision? P: Yeah, I think so. It didn’t surprise me and I didn’t take any affront to it. I’m way past that [laughs]. In the second case, the prosecutor made a short submission but withdrew this when the magistrate indicated he would grant bail. This illustrates how a significant consideration for prosecutors is the seriousness of the offence and the offending history. In this case, the prosecution wished to protect an alleged victim. However, magistrates often took a different view in such cases. Provided there was an address, a reporting condition, and in cases where warrants had been previously issued a surety (normally from a family member), the defendant would obtain bail. It was assumed that many defendants would forget the date or reporting conditions (“this is human nature”). It was also recognized that police resources would not be employed in pursuing those who missed hearings. I: If there’s a breach of bail the police may not find them again for several months? P: Possibly. What happens is that they will get flagged on our system for a breach of bail. Sometimes it depends, like from a local service area point of view, if this is a person of interest—I won’t use the word “target”—but a person of interest who might be a volume crime type offender. They will see he or she hasn’t complied, and they will go and target that person. But there will be other people that aren’t of particular interest, and they just turn up in the system. The police faced a continuous problem of keeping up with bail applications while having limited resources. One prosecutor in South Australia explained that home detentions were an attempt to reduce

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pressure on the over-crowded remand prisons. Another option was to caution more defendants to give them a second chance before they entered the system. There were particular organizational challenges in New South Wales: I: Is your agency under pressure to speed up? P: Yes, we are. We are listing 3 months down the track. 3 months is a concern for me. I lose my victims in that time. The time taken to go to trial in the District Court has blown out. They are trying to push more to police prosecutors. For us here, depending on which court you work at, it could be 5 weeks or 5 months. Depends on how good the magistrate and Legal Aid are. I: How do you manage the work? P: See my board (points to whiteboard) I have one prosecutor running hearings in five courts today. This is unheard of in the legal profession. The local court is the first place for everything. Even murderers come here. By the time you get to District, it’s months down the track. We don’t have that time here. It’s a chop shop. More people are needed. If we doubled our workforce of prosecutors, I would be happy. There is a command of 350 for the whole state. The information we obtained from prosecutors is intriguing but incomplete. To give an example, it appeared that New South Wales Force was the only police force with a blanket policy of sending every minor offender to court, rather than giving police bail. Whether this had a significant effect on the remand population is unknown. It seems more likely the rise in the time spent on remand in that State comes from court delays in listing trials in the District Court. The threefold increase in imprisonment over ten years may have many causes, none of which can be given more weight than others. It is, however, possible that an informal policy to refuse bail by the police could have a large statistical effect. The refusals would increase the number of defendants spending short periods in custody before they are granted court bail.

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Defence Lawyers In Australia, lawyers employed by Legal Aid often represent defendants at the first hearing.10 They can take on the case, but normally after the first hearing transfer the work to private law firms. Like prosecutors, Legal Aid lawyers work under pressure, often seeing several defendants in a short period of time, and then representing them in court. A lawyer described some of the practical work: Experience tells you what you need to know, and the other thing is that a lot in the submissions we make comes not from their instructions but from their priors and from the allegations. We’ll receive disclosure from the police on the morning which will be the facts of the prosecution case and we have their prior matters. I could do a bail application based on those two things. If they don’t have a history of failing to appear or breaches of bail then that’s a huge submission to make, or they may not have priors at all. It’s also just the way you word it. If you’ve had someone who has been to court quite a bit, that can look bad for them because they’ve got a bad criminal history. But if they’ve got a lengthy history but no breaches of bail then that means that is a really good submission to make because you can say, “Your Honour they’ve been on bail a number of times in the past and they’ve always shown they’ve been willing to abide by bail conditions”.

A sense of the practical work involved can be obtained by considering how these lawyers assisted defendants in arranging a surety. A surety is someone prepared to pay money into court that will be forfeited if the defendant fails to attend the next hearing. It is not essential in bail applications, but in practice it strengthens an application. This account gives a taste of the practical difficulties in getting information from defendants after meeting them in the cells before a legal hearing:

 In Australia, each State has its own Legal Aid commission that provides free representation in criminal courts by duty lawyers. Defendants must satisfy a means test. 10

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It takes up a lot of time. We will know, instinctively, the cases when a surety will be required and that will depend on the magistrate but also the charge. If it is a breach of bail, for example breach of curfew or failing to appear, and a warrant is issued, then generally speaking their chances of bail will be increased if there is a surety. The way that conversation usually goes is I’ll say, “OK you’ve been arrested on a warrant for failing to appear on [ ]. Do you agree you didn’t come to court?” “Yeah, I didn’t come to court. My Mum was in hospital”. “Right OK. Well, the issue we’ll have there is you didn’t call the court and let them know that your Mum was in hospital. So what the magistrate’s going to want is some sort of guarantee that you’re going to come to court next time. What they might want is a surety, that’s someone who can guarantee that you will be there. Can you think of anyone?” “No, I can’t think of anyone”. “What about Mum or Dad?”. “Oh yeah my Mum could do it”. “OK. Do you know her phone number?” “No I don’t know it”. “OK um do you have it in your phone?” “Yeah my phone’s in my property”. “OK what’s your Mum’s name. What’s her date of birth?” That’s how the conversation goes. They will know her name but never know her phone number. It is very rare which is really frustrating. And they never have their phones because they’re with the police. So sometimes we’ll go down there and ask to get access to their phone which is a hassle in itself because they have to get it out of police property [in the next building] and that takes up a lot of time. Then you have to find out do you have a pin number on your phone do you give me permission to use that to use that number, it’s a bit of a painful process. Then, if there are cases which definitely need a surety, I will say look I’ve called your Mum and your sister and I’ve called your auntie your auntie didn’t answer. Your Mum said no way in hell would she be a surety and your sister couldn’t get here in time, so then I’ll say we can either go for bail without a surety but that may not be successful or we cannot make an application for bail and you can try and contact your Mum.

In this court, defence lawyers in private practice would sometimes assist on bail applications for clients they were representing, although they did not get paid:

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I get a call from the Legal Aid duty solicitor to say that Fred Smith’s in custody. You go to court to do the bail application. Invariably you don’t get paid for that. You know you’ll pick it up in the end. It’s not commercially viable but it’s one of the facts of life of doing Legal Aid work.

Defence lawyers are skilled at achieving the best outcomes, given the circumstances, for clients. Depending on the bail law, it might make sense to plead guilty, since this would result in spending less time in prison than being refused bail: Q: Are there any cases you have come across where someone has spent a long period on remand who shouldn’t have done? A: At the early stages of the domestic violence legislation, where they started off with the presumption not to get bail, there were people who were spending 3 or 4 months in gaol until matters were completed, so my practice used to be that you’d look at it, if there was any basic evidence against someone, you pleaded guilty at an early stage. You end up with a week or two in gaol, or you get out with a fine or a family violence order made. You avoided the risk that you would be stuck in gaol for a long time till the matter was finalised as a defended matter. The penalty on bail was greater than the penalty that was likely to be imposed by the court. A magistrate who had been a defence lawyer explained some of the tactical considerations, based on an assessment of the prosecution case: Sometimes the clients don’t think they’ll get bail. They think they will ultimately get a prison sentence and want some off the top of it. It’s almost as pragmatic as that. So if I was advising people, as I did years ago, I might say don’t apply for bail today. We’ll plead you guilty next time in a couple of weeks and I’ll ask the magistrate to backdate it. You won’t get much more than a month anyway and it doesn’t get him offside [at this hearing]. Let me know and I’ll talk to the police and see if I can make some arrangements about admitting some facts so they get an agreed basis on which you plead guilty. There’s a lot of rough and tumble out there in relation to these things. And most of these people who have been around the block a few

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times will know that. They will know I’ve got Mr H and he’s likely to give me a month or two months or whatever it might be. And so it does become tactically quite interesting.

As one might expect, some defence lawyers expressed critical views about the approach taken by the police: Prosecutors try to oppose bail. They are police officers. … Then the police officers on the ground quite often make it hard for someone on bail. Because if you’ve got a curfew to be in by 9 o’clock and not out before 6 o’clock, they’ll go out four times in a night and wake up the whole ­household. And it seems to me that there’s a big incidence of bastardry amongst the apprehending police officers in the field and they’ll pick on people they think shouldn’t be on bail and say, “We’ll make their life a misery while they are on bail”.

This lawyer believed that a defendant without previous technical breaches had a better chance of obtaining police bail: If you turn up with a very limited prior record then you are most likely to have no opposition to bail, whereas a person in the same circumstances charged with the same thing, with a bad record [they end up in custody]. They say it’s in the public interest that they’re held in custody. And if they think that someone shouldn’t be on bail, if they can catch them out on a curfew they can arrest them, and then they’ve got to fight to get out on bail.

Business as Usual These interviews provide many insights into how practitioners understand their day-to-day work. A central finding is that magistrates, in particular, employ considerable discretion when making bail decisions (see also Hinton 2019). There are magistrates who allow or refuse most applications. There are also magistrates who have a preference for particular conditions. Prosecutors and defence lawyers who appear regularly in courts make submissions that draw on their past experiences with magistrates.

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A second finding is that those working in courts employ what some researchers have called “craft skills”: areas of specialist expertise that develop when pursuing occupational tasks (Flemming et  al. 1992). These include the work of finding a surety, advising a client on tactical grounds to make a guilty plea and even “splitting files” when preparing applications for court. These craft skills are rarely mentioned in legal texts and do not require a high level of technical knowledge. Yet they are vitally important to making the system work. If a file was not “split” correctly, it would prevent an application being presented in court. A third finding is that practitioners make decisions collaboratively in a system that places huge pressures on everyone because it is chronically underresourced. The magistrates interviewed seemed insulated from these pressures, or perhaps preferred to raise such issues in closed meetings. However, it seems likely that they also face difficulties when, for example, having to assist unrepresented defendants (Genn 2012). A fourth finding is that information is shared or transferred between organizations in a paper system that works but also makes possible mistakes. These findings could no doubt be explored or elaborated given more access to agencies. What comes across in these interviews is that practitioners mostly accept these organizational constraints. Not a single interviewee complained about the current system or suggested that there might be an alternative. They accepted that the agencies had to work with limited resources. They also accepted whatever law happened to be in place. We did not find any practitioner express a concern that the remand population had increased from 20% to 30% of the prison population over a ten-year period. This is what we are calling “business as usual”. We supply more detail on how bail decisions are currently made in the next chapter through drawing on our observations of legal hearings.

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References Anleu, S.R. and Mack, K. 2017 Performing Judicial Authority in the Lower Courts. Palgrave, London. Bartels, L., Gelb, K., Spiranovic, C., Sarre, R. and Dodd, S. 2018 “Bail, risk and law reform: A review of bail legislation across Australia”. Criminal Law Journal. Vol. 42, No. 2, pp. 91–107. Brown, D. 2013 “Looking behind the increase in custodial remand populations”. International Journal for Crime, Justice and Social Democracy. Vol. 2, No. 2, pp. 80–99. Emmelman, D. 2003 Justice for the Poor. Ashgate, Aldershot. Fader, J. 2018 “Keeping classical ethnographic traditions alive in the modern day academy”. In S.  Rice and M.  Maltz (eds.) Doing Ethnography in Criminology. Springer, New York. Flemming, Roy, Nardulli, Peter and Eisenstein, James 1992. The Craft of Justice: Politics and Work in Court Communities. Philadelphia: University of Pennsylvania Press. Frohmann, L. 1991 “Discrediting victims’ allegations of sexual assault: Prosecutorial accounts of case rejections”. Social Problems. Vol. 38, No. 2, pp. 213–226. Genn, H. 2012 “Do it yourself law: Access to justice and the challenge of self-­ representation”. Atkin Memorial Lecture, London. Heumann, M. 1978 Plea-Bargaining: The Experiences of Prosecutors, Judges and Defence Attorneys. University of Chicago Press, Chicago. Hinton, M. 2019 “A bail review”. Adelaide Law Review. Vol. 40, No. 1, pp. 187–204. Lipsky, M. 2010 Street-Level Bureaucracy: Dilemmas of the Individual in Public Services. Russell Sage, New York. Sarre, R., King, S. and Bamford, D. 2006 Remand in Custody: Critical Factors and Key Issues. Trends and Issues in Crime and Criminal Justice (No. 310). Criminology Research Council, Canberra. Travers, M. 2012 The Sentencing of Children: Professional Work and Perspectives. New Academia Press, Washington DC.

5 Bail Decision-Making

Interviewing provides an insight into a whole dimension of practical work that is invisible or concealed when observing hearings. One can learn, for example, what is involved in obtaining a surety, the tactical considerations around guilty pleas and the organizational pressures and constraints on practitioners. However, what one can see as a court observer is also valuable. Important data may be hidden, for example, the criminal record of defendants or details of the seriousness of a charge. Nevertheless, one can hear magistrates weighing up different factors, applying legal tests and giving reasons for a decision. The rest of this chapter will present some examples of decision-­making. We start by considering the legislation that informs the bail decision. This is complicated, since bail law differs in each State. In some States, especially New South Wales, there is a complex history of politicized bail reform. Without providing a full legal analysis, we will explain some of the legal tests. In the next part of the chapter, we will consider some examples of how decisions were made in Tasmania when we conducted a pilot study in 2013–14. At this time, the legal tests came from case law, and one statute that concerned domestic violence cases. Then we will look at decision-making following the introduction of tougher legislation in New South Wales and Victoria. Our observations indicate that © The Author(s) 2020 M. Travers et al., Rethinking Bail, https://doi.org/10.1007/978-3-030-44881-3_5

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magistrates still have freedom of action in applying the legal tests, although the legal provisions in Victoria make it difficult to grant bail for offenders who have repeatedly committed minor offences. At the end of the chapter, we consider the craft skills employed by magistrates in calculating the amount of time a defendant might spend in prison before trial and comparing this to the likely sentence. We conclude by recognizing the importance of discretion in judicial work.

Bail Legislation The law relating to bail in Australia is complex, especially when changes are made to the burden of proof in an attempt to guide judicial decision-­ making (Brown 2013; Bartels et al. 2018). The basic considerations are, however, very simple, whether these are in common law cases or in legislation.1 The judicial officer has to assess the risk of whether a defendant will fail to attend the next court date, and also the risk that further offences will be committed while on bail. In Tasmania, the law comes from the common law judgement in R v Fisher. One commentator summarized the principles in the following terms: Any person accused of committing a crime is presumed innocent until proven guilty in a court of law. It follows that a person charged with a crime should not be denied freedom without conviction unless there is a good reason. The essential question to be determined on any application for bail is whether or not the applicant will appear to answer bail if it is granted; R v Fisher (1964) 14 Tas R 12 at 13, per Crawford J (Snr). … The nature of the offence charged, the severity of the possible sentence, and the strength of the state’s case are said to be additional considerations, but, properly regarded, they are really only matters that are relevant to the central question of whether the applicant will answer bail. Prima facie every accused person is entitled to their freedom until trial. No one should be punished by imprisonment before conviction, and to place too much  For relevant legislation, see R V Fisher 1964 (Tas), Bail Act 1977 (Vic), Bail Act 1985 (SA), and Bail Act 2013 (NSW). The Bail Amendment (Stage 2) Act 2018 (Vic) contains diagrams to help practitioners navigate its provisions. 1

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r­ eliance on the strength of the state’s case is to prejudge the matter. (Escourt 2016, p. 1)

The judgement in R v Fisher considers various factors that might be relevant in making the decision. In addition, it canvasses ways in which a judicial decision-maker can impose conditions that will assist the defendant or allay community concerns. These conditions include submitting to a curfew and reporting to a police station, but it is left open for judicial officers to suggest suitable orders. In most States, these common law recommendations have been replaced by statutes. These codify the principles, but have also tended to make it more difficult to obtain bail, through introducing new tests explicitly based on risk. However, the central considerations have not really changed over a long period of time. Here, for example, are the factors to be considered in determining whether there is an “unacceptable risk” under the Bail Act 1977 in Victoria2: (3) In assessing in relation to any event mentioned in subsection (2)(d)(i) whether the circumstances constitute an unacceptable risk the court shall have regard to all matters appearing to be relevant and in particular, without in any way limiting the generality of the foregoing, to such of the following considerations as appear to be relevant, that is to say— (a) the nature and seriousness of the offence; (b) the character, antecedents, associations, home environment and background of the accused; (c) the history of any previous grants of bail to the accused; (d) the strength of the evidence against the accused; (e) the attitude, if expressed to the court, of the alleged victim of the offence to the grant of bail; (f ) any conditions that may be imposed to address the circumstances which may constitute an unacceptable risk.

Bail legislation is often difficult to understand even for practitioners, partly because the terminology has changed, but also because these considerations are applied as part of tests that make it more difficult to obtain  For changes following the Bourke Street rampage, see the Bail Amendment (Stage 2) Act 2018 (Vic).

2

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bail for many types of offences. The overall effect has been to undermine the presumption of innocence, even though this is still stated as a central principle in the preamble to some statutes.3 There are many technical discussions of bail legislation, and the laws have been reviewed on more than one occasion by law reform commissions (e.g., NSW LRC 2012). When magistrates apply bail laws, they do not normally make fine distinctions in law or refer to cases decided in the higher courts. For this reason, this chapter will not provide a full analysis of legislation. It is, however, worth making a few observations on how bail legislation nationally has developed in three stages. In the first stage, the burden of proof has been reversed for certain types of offences. Under case law and the early statutes, the prosecution had to prove that a defendant should not be allowed bail, against the presumption that a defendant should “not be denied freedom without a good reason”. Yet, in this first stage, the burden of proof was reversed for many offences. In a second stage, law reformers have tried to make the legislation clearer, given that there have been so many amendments. The newer legislation has also provided an opportunity to recast the existing principles into the language of risk. Instead of the prosecution having to prove that a defendant would not attend the next hearing, the new terminology is that the prosecution has to demonstrate there is an “unacceptable risk” of the defendant not attending court or committing offences while on bail. This risk could still be reduced by appropriate orders. One cynical observation might be that, even though the new legislation appeared to be tougher for political purposes, in reality judicial officers were applying substantially the same considerations in making bail decisions. There is, however, a third stage. The history of how new legislation has been introduced is complex, particularly in New South Wales, where an attempt at simplification led to a political backlash. In simple terms, governments have responded to perceived public concerns about bail through adding an additional test in which the burden of proof has emphatically  It is difficult providing a balanced account in a politicized area of law. We met prosecutors in New South Wales who believed that the bail law still favours defendants. In their view, despite the various qualifications, there is still a presumption of innocence. 3

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been reversed. This test does not apply to every offence but it applies to many offences. One target of the reforms was repeat offenders, even if they had committed minor offences. It has become much harder for these defendants to obtain bail. The terminology and what is sometimes called “architecture” in these statutes differ between States.4 In New South Wales, there is what is called the “show cause” test. If the defendant falls into this category, the burden of proof falls on the defendant. But if the defendant overcomes this hurdle, there is still the “unacceptable risk” test. The prosecution has to prove that the defendant may not attend the next hearing. This has led some critical commentators in New South Wales to express exasperation about a statute that seems unnecessarily complicated, and even logically incoherent: In the event that the accused does ‘show cause’ and the bail authority turns to the unacceptable risk assessment, does s19(3) mean that the factors taken into account for showing cause cannot be re-assessed for the making of a bail decision of ‘unacceptable risk’? If that is so, this would be particularly problematic given that, when assessing the factors in s18, specific reference to matters that may be used to ‘show cause’ are included (for example s18(1)(c) (strength of the prosecution case), (h) (the length of time the accused person is likely to spend in custody if bail if refused) and (k) (special vulnerability/needs). (Brown and Quilter 2014)

In Victoria, there was already a dual system (Fox and Deltondo 2019). However, the most recent legislative changes following the Bourke Street rampage were intended to close any loopholes available to magistrates. These legislative changes are also complex. In simple terms, the Coghlan report recommended that defendants had to supply a “good reason” why they should be granted bail. This went further than the previous legislation in reversing the burden of proof for many offences. However, the government felt this did not offer sufficient protection. The revised Act requires defendants to demonstrate that there are “exceptional circumstances” why they should be granted bail.  The “architecture” has become sufficiently confusing that some statutes provide a flow chart to help lawyers find their way in the building. 4

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Even without providing a detailed legal analysis, it will be clear that bail law has changed considerably since the twentieth century. There used to be a strong presumption of innocence and expectation that most defendants would obtain bail. But today, this has been considerably eroded. However, we have so far only considered the law in the books and given a taste of how this is understood by academic lawyers. We will now describe how the law is applied when magistrates determine bail applications.

Decision-Making in Tasmania Because each State in Australia has its own bail legislation, it makes sense to consider in two sections how magistrates make decisions. In the first section, we will consider some examples from Tasmania in which the law follows common-law principles and there is still a strong presumption of innocence. In the second section, we will look at examples of how “tough” bail legislation was applied by magistrates in New South Wales and Victoria. It is sometimes assumed that magistrates approach the decision-­ making task systematically, perhaps giving each factor mentioned in the legislation a weighting, before reaching a decision. This approach was employed by one magistrate and she was praised by colleagues in that court for communicating clearly. Most magistrates did not mention or give a view on the seriousness of the offence, perhaps suggesting that this had little importance. Nor did they talk about the defendant’s background, unless there was unstable housing or a drug problem. The strength of the evidence was important in some applications. Our impression was that the police could make mistakes, and, in these circumstances, magistrates would grant bail whatever the burden of proof. Magistrates usually considered whether conditions, such as a requirement to report to a police station, would reduce the risk.

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A Section 12 Application In the following hearing, the magistrate was asked by the prosecution to refuse bail under Section 12 of the Family Violence Act 2004 (Tas) on the grounds that the safety of his partner after an incident of domestic violence could not be guaranteed. The legislation is significant since these are the only offences in which the burden of proof has so far been reversed in this State. When an “ordinary” defendant applies for bail, the prosecution has to demonstrate that there is a risk of him or her not attending the next hearing or committing offences on bail. But when the offence relates to domestic violence, the defendant has to prove that the alleged victim will not suffer harm if the court grants bail. Whether or not the application was made by an “ordinary” defendant or a defendant charged with an offence relating to domestic violence, magistrates had to start by weighing up such factors as the bail history and possible conditions. This is a slightly abridged transcript of the hearing: Application 1 1. LA: He is pleading not guilty. The prosecution are opposing bail. 2. M: I’ll hear the grounds of opposition. 3. P: [Reading extracts from the police summary] Your Honour, there 4. are section 12 grounds. Previous convictions have been admitted. 5. There is a history of taking cars … and drink driving. … My point in 6. bringing it up is to show there is a drink problem for this defendant. 7. The events of [ ]. The defendant is 27 years old and lives at [ ]. 8. He was living with [ ]. He moved to Tasmania from Queensland 9. and they have been living together for 3 months. On [ ] they had 10. an argument about his employment. … The defendant arrived 11. home at 11.30pm intoxicated. He woke her up saying she was 12. “a fucking cunt, a fucking whore”. She said she did not want to 13. be in the relationship. He held her on the throat so it hurt. He pushed 14. her into the stairwell and caused her to hurt her head. … The 15. defendant again grabbed the victim by the throat and squeezed the 16. throat. The defendant only stopped when witnesses called the police.

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17. [The defendant was taken to the police station, and charged and 18. bailed the next day after he had sobered up, under a police Family 19. Violence Order] 20. The police attended the victim the next day. The defendant was 21. within 50 meters and so arrested and taken to the police station. 22. Your Honour, there was a Family Violence Order and he breached 23. it so he needed to be remanded under section 12. He has interstate 24. connections so is a flight risk. The victim said that he was going 25. to move to Launceston so he might not answer to bail. There is no 26. surety. He cannot satisfy section 12. That is my submission. 27. M: Miss Wood. 28. LA: Mr. Roberts has been a chef the last three years, employed in 29. different States in Australia. He is in reasonable good health. He 30. had medication for [ ]. My instructions are that this was a brief 31. relationship. … Mr Roberts was recently offered the position of 32. a chef in Launceston. He plans to move to Launceston tomorrow. 33. We are trying to contact the restaurant owner. There was a breach 34. but the police were present at the time. In any case he could attend 35. with the police to retrieve his belongings. 36. M: He does not have a surety, I presume. 37. LA: No. There is the employer [who could be a possible surety]. 38. M: [Two minutes of thought, with hand on chin]. I recognize this as 39. being partly on the borderline and I’m frankly unclear on whether 40. section 2 justifies remanding in custody or to put it another way 41. justifies being bailed. So I’m going to adjourn the matter for a 42. period of time for two reasons. One reason is, if there is no surety, it 43. is important I receive confirmation of this. It is also confirmation that 44. the defendant really is going to be employed and more important 45. I receive that he is going to be living in accommodation in 46. Launceston. … If it were only the first reason, it could be done 47. at 2.15. For the other points I need [documentary proof ]. So we 48. should meet at 9.45am Court 3 on [ ] for further submissions. LA: Legal Aid lawyer, M: magistrate. P: prosecution

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The magistrate hearing this application had to consider the risk of harm to the complainant, viewed from the police perspective as the victim of domestic violence (line 20). In this case, the defence might be able to show that there was a low risk given that the defendant would be living in a different city (lines 31-32). In other applications observed in this court, magistrates were willing to grant bail, for a first offence, if the defendant moved to a different neighbourhood, and perhaps if there were conditions to report twice a week to a police station. Offering a surety (line 36) who would pay $500 or $1000 was also often sufficient to obtain bail. A prior record (lines 4–5), especially if this involved domestic violence or breaches of bail, would make refusal more likely. In some applications, the defence lawyer attempted to demonstrate a weakness in the prosecution case. In this application, the defence lawyer may not have had time to take full instructions other than to plead not guilty, or perhaps saw no reason to reveal her hand given that the defendant was moving to Launceston. This magistrate was known for giving clear reasons, and generally adopting a hard-line approach. He was affectionately known by some in the court community as “our hanging judge”. Other magistrates were lenient and did not give reasons, in some hearings interrupting the defence lawyer to give a favourable decision. There were magistrates in the middle who carefully weighed up the pros and cons when giving reasons for the decision on each application, so it was difficult to predict how they would respond to similar circumstances. Even if a magistrate was likely to grant bail, the prosecutor had to oppose on section 12 grounds because this was police policy. In some applications, the defence lawyer was following the defendant’s instructions, even though more preparation was required, such as obtaining a surety, to have a realistic chance of success. Because of this, some applications gave a sense of either or both the prosecution and defence lawyers going through the motions. One might assume that this was necessary for legal and organizational reasons.

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A Breach of Bail Magistrates in Tasmania often gave at least one chance for a breach of bail, such as not attending a court hearing, reporting to the police station or complying with a curfew. A breach of bail was itself a criminal offence and defendants received a short period of imprisonment for these bail offences, usually backdated, when they were sentenced for the substantive offence. It was more difficult to obtain court bail if other offences were committed on bail. Magistrates responded differently to breaches. The following is an example of a lenient response, influenced by the young age of a defendant. He was charged with common assault and stealing a motor vehicle. He also had an extensive criminal record and was in breach of suspended sentences. Community Corrections reported while the defendant was being brought up from the cells that that he had missed eight out of ten appointments. Application 2 1. CC: You are Martin Jones 2. DL: Your Honour, in relation to all the matters I am not sure what 3. complaints are listed today. 4. M: There are twenty here. It will be all of them. 5. P:

Thank you, Your Honour.

6. D: 7. 8. 9. 10. P: 11.

Thank you, Your Honour. My application is to adjourn for approximately two weeks so we can take instructions or obtain alternative representation. Otherwise we will make an application for bail. Your Honour, I have the priors. I understand he is in breach of suspended sentences.

12. M: [Identifies the details] 13. P:

The common assault breaches a suspended sentence.

14. M: What happened last time the defendant was in court?

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It was for a contest mention for sentencing and following that he didn’t turn up. As a result of the assault the victim has a broken nose.

17. M: Just on the priors, reading the facts, the allegation is the defendant on 18. [ ] at 2am attempted to steal a motor vehicle with his brother. He hit 19. the victim on the head. [M notices a charge of aggravated assault appears to have been dropped] 20. P: He failed to turn up at the contest mention and failed to appear 21. on [ ]. So arrest warrants were issued. 22. M: You’re saying he won’t turn up in court. 23. DL: Your Honour, he’s 19 and bailed to [ ] where he is currently residing. 24. My submission is that his bail conditions were complied with. 25. M: He did not turn up at court. 26. D: Yes but he complied with the other conditions. 27. M: Why did he not go to court? 28. DL: On [ ] and [ ], he had medical certificates. 29. M: Why didn’t he contact the court? 30. DL: I understand on [ ], he did 31. M: There is a medical certificate. What is his occupation? 32. DL: He has been in employed as a casual labourer but he had an injury 33. a few weeks ago. 34. M: What injury? 35. DL: An upper back injury. 36. Brother: He has a broken back, Your Honour, and a broken arm. 37. DL: He resides with his mother. His sister in law is prepared to enter 38. into a recognizance of $500. 39. M: What’s she do? 40. DL: She is a child carer completing her certificate.

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41. M: Are you prepared to be a surety? What’s your name? You realize 42. what will happen if he breaches his bail. You’re going to troop 43. into court each time. You reside at [ ]. You agree to be a surety for 44. $500. OK. You realize that if he breaches bail you lose the $500. 45. P:

[Reports that a medical certificate has the wrong date].

46. DL: Otherwise he will comply with a residential curfew, and he will 47. not enter the [ ] CBD. 48. M: OK. When is he next in court? 49. DL: My application is to adjourn for two weeks 50. M: I’d like to keep a close rein on him, so I’ll say a week. 51. CC: Thurs [ ] 52. M: Well, I’ll give you one chance. If you don’t turn up you won’t 53. get bail. You’ll let down Miss S. She won’t be a surety in the future. 54. The conditions of bail are you reside at [ ]. There is a surety of her 55. own recognizance of $500. You do not enter the [ ] CBD area. 56. P:

Not to approach the victim.

57. M: That’ll be in the bail order. Make sure you read it. 58. D: Thank you, Your Honour. For a breach of bail, there is no legal test ahead of the next decision. Nor are reasons usually given for the decision. In this case, the defendant has committed previous offences and failed to attend two hearings (lines 20–21). If found guilty on the assault charge, a suspended sentence would be activated and he would spend some time in prison. In the defendant’s favour, he had a surety: not simply the offer of a surety but someone who was present at the hearing (lines 41–44). The magistrate advised her that she might lose the money, perhaps drawing on previous experiences. In addition, there were medical reasons for not attending previous hearings. It might seem odd that the magistrate did not ask the defendant to explain how he telephoned the court (line 29). It is possible that he had already made up his mind, or even had a policy of giving one second chance, without needing to hear more information.

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In this jurisdiction, most defendants were granted police bail. This means that decisions on breaches by magistrates were important in determining what happened to defendants. Some magistrates gave many chances. They believed that defendants should be entitled to the presumption of innocence. It is interesting in this case that, if the defendant failed to attend the next hearing, and was brought to court on a warrant, a new bail application might be heard by a different magistrate.

Applying Legal Tests In New South Wales and Victoria, bail decisions are guided by statute. These have gradually imposed more rigorous tests on defendants as governments responded to concerns about offences committed on bail. We were advised by defence lawyers that it was rare for defendants to overcome the hurdles, and it even made sense to plead guilty to some offences. The tougher legislation explains why there are higher numbers of remand prisoners as a proportion of the total prison population in these States. Nevertheless, magistrates responded differently to the legislation. We observed two examples that suggest different approaches. In the first, a magistrate found the defendant had “shown cause”, and subsequently granted bail. In the second, a magistrate in Victoria seemed to apply a tough law enthusiastically (but it is possible that another magistrate might adopt a different approach).

“Show cause” in New South Wales In the legislation in NSW a defendant can be asked to “show cause” in certain circumstances, such as whether an “indictable” (more serious) offence has been committed on bail.5 This reverses the burden of proof and makes it difficult to obtain bail. The test in the legislation is more complicated in that if the defendant does “show cause”, the prosecution can still seek to prove there is an “unacceptable risk”. There is a dual test,  It may be misleading to see “indictable” offences as more serious. Our understanding is that most defendants are charged with what are called “either way” offences (potentially indictable) and would need to “show cause”. 5

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sending a strong message politically that it should be difficult to obtain bail. In the following application, the defendant had breached a bail condition that required him not to drink in a public place. He was also charged with a new offence of “affray”, for threatening an officer with a fork. A magistrate accepted the defence argument that the prosecution had overcharged the defendant in order to take advantage of the “show cause” provision: Application 3 1. DL: Release application 2. P: And detention application. Not to be intoxicated in a public place. 3. M: A detention application. 4. DL: There was a condition of not being intoxicated in a public place. 5. He thought that drinking in a bar was OK. That’s all I’d say on 6. that Your Honour. 7. M: [reads] Yes Mr. Jones. 8. DL: Yes in relation to the show cause it seems to be a case of common 9. assault. He was holding a fork eight centimetres away there was 10. no physical contact. But the prosecution have laid affray charges 11. that sets off the show cause. An affray charge causes a greater 12. maximum penalty. Certainly in terms of affray it is at the lower end. 13. It was handled by the police officer there and the fork was only 14. taken so he could eat. 15. 16. 17. 18. 19.

There are other factors in the antecedents. He is a painter and is not on Centrelink. He owes money on his childcare payments. If he was in custody, this would go away. They are the main factors I would raise to show cause. And also if the offence related to his family, it would be a whole different category.

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20. M: Mr. C. You are charged with affray so there is a show cause 21. provision. Were the situation otherwise it would be a simple 22. common assault. In addition [because you are pleading not guilty 23. to the first substantive charge] you could spend a significant 24. amount of time in custody. On that basis, the court is prepared 25. to come to the view that you have shown cause. 26. P: Your Honour bail is not opposed. Our concern is the safety of 27. his family. The prosecution will press for a residence condition. 28. Also there should be an alcohol restriction. [M questions the custody officer about the defendant’s address] 29. DL: I can’t say anything on the conditions. The address should be. … 30. We’d ask that the conditions be replicated and perhaps it could 31. be made clear what that means. 32. M: [writes] 33. M: Mr. C this matter goes to the [ ] Court 6 June 2017 9.30. There 34. is conditional bail to continue to reside at. … And there is an 35. express condition not to consume alcohol in a public place. 36. This includes pubs and clubs. You can drink in a private dwelling. In this application, the magistrate quickly accepted the argument on “show cause”, and the prosecutor immediately withdrew his opposition to the bail application (lines 26-27). The key reason for the decision stated by the magistrate is that, if the defendant was remanded, he would spend more time in custody than was justified by the original offence (lines 23-24). The details were not available to the researchers. The subsequent offence of affray might appear to attract a longer sentence, but the magistrate made it clear that he viewed this as overcharging. Exercising discretion in this application involved both interpreting the law and assessing the factual basis of a charge (it is difficult to separate the two). Although this is only one case, it illustrates that not every magistrate made harsher decisions as a consequence of this law.

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The “Exceptional Circumstances” Test in Victoria The criminal justice system in Victoria is interesting since only a few years ago the remand rate was considerably lower than in other States. Today, after the Gargasoulas case, the State has the highest remand rate in the country. Without providing a technical analysis, the reason is that when defendants commit even minor offences on bail, they have to demonstrate there are “exceptional circumstances” why they should receive bail. Given the resource constraints of our study, it is difficult to examine how this new legislation was understood or applied by magistrates. Perhaps a scientific approach would be to identify “soft” or “hard” magistrates and attempt to see how they applied the new tests.6 On one occasion, a researcher observed a hearing on a charge of assault in which the informant (investigating police officer) recommended bail. The magistrate was applying the “exceptional circumstances” test and was reluctant to grant bail. However, the prosecutor withdrew his objection after the police officer unexpectedly gave this advice. It was reported that the victim (who lived next door to the offender) supported bail. The magistrate found that this amounted to “exceptional circumstances”. We also heard accounts of other successful applications.7 One magistrate accepted a combination of circumstances, for example undertaking drug counselling and providing a surety, as satisfying the test. If every magistrate took this view, and there were no appeals by prosecutors, the revised legislation might not change existing practices. One practitioner in New South Wales advised that there was a process following the introduction of new legislation in which there was uncertainty in decision-­ making. Over time, practitioners found that it was possible to achieve

 This would be practically difficult in requiring many days of observation. It is also difficult to identify which magistrates are sitting without assistance from the court. Even without pursuing an experimental approach, one can see there are different approaches from observing a few magistrates. 7  A critic of ethnography might describe this as “hearsay” evidence. We have not observed hearings that demonstrate such responses to the legislation, but have heard reports by practitioners. In social science projects, hearsay evidence is valuable in suggesting questions to investigate. For discussion, see Lubet (2018). 6

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similar outcomes through employing the new tests or terminology in the new legislation.8 One conclusion that might be made about legislative change in Victoria is that many magistrates followed the letter and spirit of a tough law designed to reduce the risk of another Bourke Street rampage. Consider, for example, the following application observed in the new Night Court. The applicant was charged with motor vehicle theft while on bail for a similar offence. This made the bail application subject to the exceptional circumstances test: Application 4 1. CC: George Robinson [Defendant nods his head]. 2. M: I understand you want to make an application for bail. 3. P: Your Honour, the informant was in court a moment ago for the 4. matter of the co-accused. If he is not available, I will proceed. 5. M: What is the position with Mr. Robinson? 6. P: Your Honour, he is charged with an indictable offence whilst 7. on bail and he is in breach of a Community Corrections Order. 8. They are Schedule 2 offences. There have to be exceptional 9. circumstances. 10. M: Let me explain to Mr. Robinson. Mr. Robinson, I don’t know 11. if you’ve made a bail application in person before. There has 12. been a recent change to the bail legislation. There are three levels 13. at different stages of seriousness and you find yourself in the most 14. serious category. You have to demonstrate there are “exceptional 15. circumstances”. This is not a sympathy test. If a person was 16. having brain surgery that might be sufficient. In the previous 17. legislation, the test was used for the offence of murder. It was a 18. high test. That is what you are facing today. And if I cannot find 19. you’ve demonstrated exceptional circumstances, I cannot release 20. you on bail. You understand that. Take a seat.  This theory about legislative change is difficult to test scientifically (see Weatherburn and Fitzgerald 2015). There is no strong evidence that demonstrates that tough legislation has made a difference to bail decisions. From a qualitative perspective, it is interesting that some practitioners understand legislation as not substantially changing existing practices. 8

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21. P: [Reports the details of the offence. The defendant stole a car. He 22. was bailed and did not attend court. He was charged with another 23. offence of stealing a car] 24. M: Alright, Mr. Robinson. It’s now up to you to persuade me there 25. are exceptional circumstances. 26. D: Yes. The first reason is my girlfriend has schizophrenia. [She has 27. 28. 29. 30. 31. 32.

a health worker]. But I am her carer. Without me she might go into a psych ward. I went to court on [ ]. I know what I’ve done is wrong. I’m cooperating with the police. It’s only that I fear for my girlfriend. She is 19 years old and not like a normal person. She is easily manipulated. I have got her back on medication but she needs to take it at 9pm every night.

33. M: Well, is there anything else? 34. D: No, Your Honour. 35. M: Take a seat [reads papers, hand on chin]. Yes Mr. Robinson. 36. Making decisions in bail matters is one of the most difficult 37. things to do as a magistrate. As I said, it’s not a sympathy test. 38. I am sympathetic to your circumstances. But it wasn’t me 39. who put you in the present situation you are in. While those 40. circumstances for a 19 year old are concerning, she has a [health 41. worker]. At this stage, there are strong reasons to allow you 42. bail. But as I said at the outset, this offence puts you in the 43. highest test, it is almost as high as for murder. You should come 44. back on [ ]. I have refused bail. You failed to show exceptional 45. circumstances and there is an unacceptable risk. Each bail application is interesting in its own right. In this case, the defendant was not represented. However, the magistrate gave a similar explanation directly to every defendant, whether or not a lawyer was present. The advice that one has to receive brain surgery to satisfy the exceptional circumstances test seems unequivocal: no one who commits an offence on bail in Victoria receives a second chance. Whereas in Tasmania, where there was no bail statute, it is possible that defendants

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who committed repeat offences were granted bail with conditions. It is even possible that many defendants received police bail after a second offence. This study does not give a full picture, but it suggests that there are “tough” and “soft” magistrates in each state. Other magistrates in Victoria were not enthusiasts for the new legislation and might have viewed the reasons supplied as meeting the new test.

Craft Skills: Producing a Fair Outcome This account of how magistrates make decisions has focused on the ordinary knowledge employed by magistrates within a legal framework. Although the law is technical, the considerations are easy to understand. Even the legal tests could be applied by the lay person. Yet magistrates also employ craft skills that are more technical or are only available to experienced practitioners (Flemming et  al. 1992). One example is the skills employed to ensure that custodial remands do not exceed the sentence of imprisonment that was appropriate for the substantive offences. Critics of the bail system have argued that many defendants spend long periods in custody, even though they do not ultimately receive a custodial sentence. This political critique simplifies what actually happens. Magistrates are asked to recognize that there could be unfairness in bail legislation. The cases where the defendant is imprisoned for a long period without good reason are viewed as mistakes or as professionally embarrassing. Because of this, magistrates attempt to address and pre-empt the potential problem when making bail decisions. We were fortunate in observing one application in which a magistrate explained these rather arcane and traditional skills in producing a fair outcome. We observed two applications made by different lawyers on subsequent days. In the first hearing, the defendant was represented by a Legal Aid lawyer because her own lawyer, who would not have received payment, could not attend court. The defendant had failed to appear for a hearing and a warrant had been issued for her arrest. It was suggested that she had not appeared because she was caring for her mother. There was no information available about how she was pleading to a few charges.

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There was also a suspended sentence from a previous conviction, so if found guilty she would have to spend at least three months in prison. In these circumstances, the magistrate felt it best to keep her in custody overnight in the hope that the lawyer could attend the next day: Application 5a 1. M: The problem I see is that she has a history and this raises the issue 2. of a suspended sentence. The allegations are not tested in all these 3. matters and I don’t know if she should have been bailed or not. 4. Many of the matters suggest she doesn’t turn up. My immediate 5. feeling is to keep her in custody till the time we can sort out the 6. matters. There are a number of allegations of offences while on 7. bail for other matters. I’m happy to bring her back in the morning. 8. D: Your Honour, I can speak to Miss C. I’m not sure if she is available. 9. M: Well it will be important to clarify matters [ ]. There are many 10. matters in this list. If she is bailed this week [ ], there is no 11. incentive. I’m troubled about this. The next day, the magistrate told the defence lawyer, before the defendant was brought up, that she could spend a long time in prison. He understood that the defendant was caring for her mother but had no further details. He had heard some basic facts, but not much in relation to the different matters. Application 5b 1. D: Yes well I can certainly clarify those matters Your Honour. 2. CC: [The defendant comes up from the cells]. Trish Gordon? Take a seat. 3. D: I appear for Miss Gordon today. 4. M: Thank you for coming down today. I assume that the defendant 5. is grateful. 6. D: The first matter is [ ]. I am instructed Miss Gordon will plead 7. guilty. For the driving offences she will plead guilty. For matter 8. [ ], she will plead guilty. For the breach of the suspended sentence, 9. my recollection is that was at index 28.

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10. M: Yes it is 4445. So I’ll set that aside for the moment. 11. D: Matter 29 is a common assault matter. That is a plea of not guilty. 12. In terms of estimated hearing times, I suspect that will be two 13. hours. Index 30 the stealing charge is old. From March 2006 14. she pleaded not guilty and I’m instructed that that is maintained. 15. What is not apparent from the file is that there is no video footage 16. so whether the prosecution would want to review that. There’s 17. an interview [ ] Matter at index 31 there was a previous plea of 18. not guilty. I am instructed to plead guilty to counts 1 and 2 but 19. plead not guilty to the assault on police officer charges. There are 20. not any photos of the alleged injuries. That matter would take 21. a couple of hours. The next matter of unlicenced driving. There will 22. be a plea of guilty. The final matter is index 32 unlawful possession. 23. This is set for 24. M: Traffic matters. 25. D: There are potential subsequent offences punishable by 26. imprisonment. They are noted. 27. M: They certainly are. What do you want me to do? I’m inclined 28. to give bail. She was on bail, but failed to attend court. There 29. were new matters of X and Y brought to court last time. There 30. were no conditions attached to bail as I recall. 31. D: My instructions are that she failed to appear for family issues. [ ] 32. She has a child in care. She has returned to live with her mother 33. who suffers from chronic illness. 34. M: I think she should be bailed. I say that for no reason other than the 35. matters will take a long time to resolve. I think the defendant’s 36. residence seems stable. So I am considering bail before I am not 37. sure if it is opposed or not [Prosecutor indicates there is no 38. objection]. There is no surety. I know that [she faces allegations 39. that would attract a period of imprisonment]. So those are the 40. reasons, and it may be I bail for mention on all the matters. 41. One of the matters is from 9 years ago. The Prosecution should 42. look at this. So there are some issues yet to be sorted out and it 43. is not appropriate for her to be in custody.

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When the researcher spoke to the magistrate after the first hearing, it was still unclear whether or not this defendant would obtain bail. If the matters could be finalized quickly, it made sense to keep her in custody and backdate the sentence of imprisonment. But if, as turned out to be the case, finalizing the matters would take some time, it was not appropriate to refuse bail: M: Of course, if she were to adhere to her pleas of not guilty and confirm that they will take 2 hours or 3 hours whatever they will take and we can’t hear them until November, she should not stay in custody on those matters. She may well spend longer in prison than she would do if she ultimately were to be convicted. Now I would get a feeling for whatever penalty might be imposed on those offences, once I’m told the facts of them. I would look at her history and think, well if she were to be convicted of that she may not go to prison at all or if she did go to prison she would go for say three months, or one month or something like that. I: Do the prosecution accept that kind of reasoning? M: The reasoning is not articulated [but is known to the practitioners]. And I would say something like the matters are not of sufficient seriousness to keep her in custody for X months. That’s all I would say. I might say it doesn’t mean she won’t go to prison for these but it means that she would spend a longer period in prison than perhaps she would if she had been convicted. In this hearing the magistrate spelt out the reasoning, perhaps because this would help the researcher to understand the decision.9 We were left wondering what might happen if there were more offences whilst on bail: Well, if there are more offences on bail, she then comes back before someone else as to whether she’s re-bailed or not. It becomes quite messy.

 We had observed applications in which similar phrases were used by this magistrate. At the time, the researcher did not always know what was happening. It now appears that in these cases there was a danger of a defendant spending more time on remand than if convicted of the substantive offence. 9

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This example illustrates that the formal considerations in case law or statutes are employed alongside an understanding of fairness that seems to recognize the unintended consequences of delay in scheduling hearings.10 It also shows how the magistrate required full advice from the defence lawyer to make the decision. This defendant had committed numerous offences while on bail. There were various unresolved issues in the defendant’s past record and she would be sent to prison for breaching a suspended sentence. Any decision-maker, whether a police officer or a new magistrate, had to make sense of this prior record when considering a new bail application.

The Importance of Discretion This chapter has gone further in describing the work of professionals through presenting and discussing transcripts from bail applications. Interviewing and court observation provide complementary views of routine decision-making. The quantitative data we obtained (e.g., how many applications observed were successful in each state) complements the other sources. Clearly, there are many gaps in the data, and puzzles to consider (Becker 2017, p.  207). Not every research question can be answered without having the time and resources to collect data systematically and there will always be practical difficulties in employing any method. The strongest finding from our observation of courts, supported by the quantitative data, is that magistrates exercise considerable discretion. It may be that legislation shapes outcomes to the extent that differences between magistrates no longer matter. Even so, magistrates can exercise discretion in interpreting and applying the toughest legislation. When following the law, magistrates are weighing up the factors suggested in the legislation and reaching carefully considered, individualized decisions. The importance of discretion came across in the decision by a Tasmanian magistrate in which he considered whether the law made it  This point should not be overstated since legislation in some States asks magistrates to consider punitive effects of bail. 10

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possible to grant or refuse the application. It was also evident in how magistrates in New South Wales and Victoria responded to legal tests. And when describing a craft skill, it was clear that the magistrate was making a local, situated judgement about the likely sentence and how long the defendant would stay in prison if remanded. In each case, magistrates exercise discretion working in a legal framework. They are not in breach of the law or working around the law. The bail law expects them to use discretion. Magistrates are allowed to decide cases differently. In this electronic age, there are still no central records maintained by courts and information is not shared by agencies. Nor is there any oversight, except perhaps through informal collegial discussion, of decisions. We observed some magistrates who granted bail to most applicants and others who refused most applications. In later chapters, we will consider possible alternatives to individual magistrates exercising discretion. For now, we acknowledge that this is business as usual, and it is rare to question these practices.

References Bartels, L., Gelb, K., Spiranovic, C., Sarre, R. and Dodd, S. 2018 “Bail, risk and law reform: A review of bail legislation across Australia”. Criminal Law Journal. Vol. 42, No. 2, pp. 91–107. Becker, H. 2017 Evidence. University of Chicago Press, Chicago. Brown, D. 2013 “Looking behind the increase in custodial remand populations”. International Journal for Crime, Justice and Social Democracy. Vol. 2, No. 2, pp. 80–99. Brown, D. and Quilter, J. 2014 “Speaking too soon: The sabotage of bail reform in New South Wales”. International Journal for Crime, Justice and Social Democracy. Vol. 3, No. 3, pp. 4–28. Escourt, S. 2016 “Bail – Some people don’t get it”. Supreme Court, Tasmania. https://www.supremecourt.tas.gov.au/__.../Bail__Some_People_Dont_ Get_It.docx. Accessed March 2019. Flemming, Roy, Nardulli, Peter and Eisenstein, James 1992. The Craft of Justice: Politics and Work in Court Communities. Philadelphia: University of Pennsylvania Press.

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Fox, R. and Deltondo, N. 2019 Victorian Criminal Procedure. Federation Press, Sydney. Lubet, S. 2018 Interrogating Ethnography: Why Evidence Matters. Oxford University Press, Oxford. New South Wales Law Reform Commission 2012 Bail. Report 133, NSWLRC, Sydney. Weatherburn, D. and Fitzgerald, J. 2015 “The impact of the NSW Bail Act (2013) on trends in bail and remand in New South Wales”. Issue paper no. 106. NSW Bureau of Crime Statistics and Research, Sydney.

Legislation Bail Act 1977 (Vic). Bail Act 1985 (SA). Bail Act 2013 (NSW). Bail Amendment (Stage 2) Act 2018 (Vic). R v Fisher 1964 (Tas).

6 Defendants with Vulnerabilities

Public debate about bail, at least until recently, has focused either on procedural unfairness to defendants or on the potential danger to the public through further offences on bail. Each side in the debate respects the legal principle, enshrined in statutes and case law for centuries that a defendant is innocent until found guilty. From a liberal or progressive perspective, courts wherever possible should grant bail. Those concerned about public safety in Australia have successfully argued for tougher laws that restrict the right to bail, by reversing the burden of proof for many offences and requiring judicial officers to apply stricter tests. For all the discussion about rights and due process, there is little attention in this literature to the social or psychological characteristics of defendants. This group is often described as suffering from social problems or having social needs. Increasingly, the preferred term is that they have “vulnerabilities” that include having a drug problem or being mentally ill. Such characteristics have always been recognized when considering pleas of mitigation, and practitioners connected with the courts have developed expertise in addressing drug addiction or mental illness (Menninger 1968). These issues are partly acknowledged in legislation. One bail statute in Australia asks magistrates to consider, among other

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factors, “the character, antecedents, associations, home environment and background of the accused”. This chapter will start with some observations on the concept of vulnerability. Like other widely used terms in social policy, it has a variety of meanings (Bartkowiak-Théron and Asquith 2012a, b). In criminal justice, it invites discussion on whether defendants are fully responsible agents who should be punished, or victims of social circumstances. We argue that a distinction should be made between defendants with “individual” vulnerabilities, and groups that are subject to discrimination and ill-treatment from structural inequalities (Bartkowiak-Théron and Asquith 2012a, b). The rest of the chapter draws on empirical data collected from observing 150 bail applications. Firstly, it considers the extent to which defendants applying for bail have individual vulnerabilities (an important question for those arguing for pretrial services). The chapter will then give examples of how a number of social and psychological vulnerabilities and structural inequalities were understood by practitioners as relevant. These include suffering as individuals from recognized problems such as drug use, mental illness and homelessness, but also being a member of a social group that deserves special treatment (Bartkowiak-Théron and Asquith 2012a, b). The concept of vulnerability can be problematized when applied to “undeserving” groups, such as defendants charged with offences relating to domestic violence. The chapter concludes by considering some implications for the criminal court.

What Is Vulnerability? The language used by social welfare agencies to describe social divisions has changed considerably in recent decades. Whereas defendants were once described as having social needs, or suffering from poverty and disadvantage, today they are often described as having vulnerabilities. In some respects, this concept can be criticized for accepting the economic structures and processes that produce disadvantaged groups or for implying a deficit model of defendants in need of rehabilitation.

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In a wide-ranging discussion, Bartkowiak-Théron and Asquith (2012b) and Kate Brown (2015) demonstrate that vulnerability has a variety of meanings today. It has been used by progressive intellectuals to mean that everyone is vulnerable and should be protected by universal human rights. In social policy, it is a convenient term for groups helped by welfare professionals. However, instead of receiving help, such groups can be blamed for being partially responsible for their circumstances. Brown notes how the concept invites debate about the distinction between “deserving” and “undeserving” clients: Distinguishing people as vulnerable implies something about a person’s degree of choice or human agency in their circumstances, carrying inferences about the responsibility and duty of the state to assist them. (Brown 2015, pp. 164–165)

In the context of criminal justice, a vulnerable defendant could have a mental illness or drug dependency, be homeless, belong to a minority group or simply be a young person who is easily influenced or does not know right from wrong (Bartkowiak-Théron and Asquith 2012b). We have made a distinction between individuals with vulnerabilities, and groups that experience discrimination arising from structural inequalities. When sentencing, individual vulnerabilities and the recognition of structural inequalities can to some degree mitigate an offence. At the pretrial stage, individual vulnerabilities can make defendants eligible for pretrial programs, at least in some courts. It is assumed that such programs have some chance of rehabilitating defendants or at least that defendants with vulnerabilities should be kept out of prison.

How Many Bail Applicants Are Vulnerable? It should already be evident that defendants often have a variety of social and psychological problems, even if they have stable homes and employment. The chef charged with an assault relating to domestic violence (application 1) was behaving in a manner many people would consider irrational. This was not only while he was under the influence of drink,

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but the next day when he wilfully disobeyed a police order to stay away from the complainant. Many members of the public would probably think that people who commit anti-social crimes should receive punishment, rather than social support or counselling. The magistrate who heard this bail application had no interest in the defendant’s interpersonal relationship or why he was drinking excessively. The examples in this chapter come from the States of Tasmania, South Australia and New South Wales in which pretrial services are not available to support defendants with vulnerabilities. There are also examples from Victoria, since not every defendant with, for example, a drug problem applies for assistance from the Court Integrated Services Program (CISP). The aim is to describe how magistrates currently respond to different vulnerabilities, drawing on what actually happens in hearings. However, before considering some applications, it seems important to estimate the proportion of applications by such defendants. Measurement of variables through observing court proceedings to answer social science questions can be problematic. It is difficult, for example, to assess the seriousness of the substantive offence (potentially important as an independent variable in determining outcomes) without seeing details on a summary sheet, or perhaps knowing more about the approach of a particular magistrate. In the case of identifying vulnerabilities, the coding task is easier, but not without interpretive challenges. Our approach was to focus on issues raised by practitioners during applications. We did not, for example, record that a defendant was from an Indigenous background unless this was mentioned by a practitioner. This might seem to exclude or make invisible an important political issue, especially since we know that this group is over-represented in the prison population and experiences considerable discrimination.1 However, we could also be viewed as generous, since we included indigeneity even when it was mentioned by way of background, and may not have influenced the bail decision. To give a different example, we recorded any application in which an offence had been committed while under the influence of alcohol or drugs as indicating a vulnerability. This is why the defendant who allegedly assaulted his girlfriend (application 1) is  For a powerful account of a recent death in custody, see Klippmark and Crawley (2018).

1

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classified as having an alcohol problem. Yet these circumstances were not relevant to the bail decision. Through employing this method in analysing 150 applications, we found that approximately half of the defendants had some form of vulnerability. This is unsurprising, as vulnerable people are over-represented at all stages of the criminal justice system (Bartkowiak-Théron and Asquith 2012b; Brown 2015) (Table 6.1). This means that there was an alcohol or drugs problem, homelessness, brain injury, or some other form of social disadvantage or psychological condition that was mentioned during the bail application in half of the cases we observed. Some agencies argue that a much higher proportion of defendants experience these difficulties (e.g., Australian Institute of Social Welfare 2018). Most empirical studies conducted in magistrates courts, or discussions about bail, seem blind to these issues. At the very least, this statistical finding agrees with literature which asks whether criminal courts could do more in identifying and addressing different vulnerabilities. It also invites consideration of how these issues are mentioned in bail applications, and how they might influence the legal decision.

Individual Vulnerabilities Many criminal jurisdictions have established specialist courts that sentence offenders with a drug addiction or mental illness (Lexicon Ltd 2005; Law Reform Commission of Western Australia 2009). In some of these courts, considerable resources are directed to help defendants, including placing them in suitable housing. Such programs are currently only offered to relatively few defendants who plead guilty. Our understanding is that many defendants prefer to take their chances, and others even prefer prison, to intensive therapeutic supervision. In any event, it seems worth considering what happens to those defendants who plead not guilty. A summary answer is that courts often see the vulnerabilities as relevant to the bail decision. But because they cannot address the problem, the defendant is often refused bail.

Hobart Sydney Adelaide Melbourne

58 37 29 26 150

7 4 3 2 16

Co-morbidity 7 5 2 14 28

Drugs

Table 6.1  Bail applicants with vulnerabilities

– 5 – – 5

Mental health 2 3 6 3 14

Brain injury/ disability 4 4 2 4 14

Homeless

4 3 1 – 8

Other medical 24 24 14 23 85

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Alcohol and Drugs Both alcohol and other drugs are relevant to bail applications, and issues of comorbidity are common in court. In many cases of domestic violence, offending is often aggravated by excessive drinking. We know that much property crime is committed to support a drug habit. The following application illustrates how a court would ideally like to send a defendant for specialized treatment. However, there are either too few places or a waiting list. In this case, the only alternative was being kept in the high-­ security wing of a prison. This defendant from Tasmania is an example of someone who had been drinking himself to death but also committing acts of violence against his ex-partner. The latest breach of a restraint order took place shortly after he was released on bail. He went to his ex-partner’s house, who was not there at the time, in contravention of the order. The prosecutor noted that “it is a situation where a rational person would not have gone, but a rational person would not commit the other offences”. He would be happy on section 12 grounds,2 if the defendant was admitted to the residential program available locally. However, this was not possible because there was a six-week period of assessment. No one from the program was in court (as might happen in an integrated system of pretrial services), although a welfare officer from a religious charity happened to be in attendance and who could contact the program after the hearing. The following extract is from the end of the application when the defence lawyer sought to obtain bail on the grounds that the most recent breach did not involve violence. He could stay with a “long-term friend … who has been taking him to appointments and to AA meetings and will take him to the program”. However, the magistrate took the view that, given the number of breaches, the defendant should remain in prison until he was assessed as eligible for the program.  S12 of the 2004 Family Violence Act (Tas) places the onus of proof on defendants in offences relating to domestic violence to demonstrate that granting bail would not put the alleged victim at risk. 2

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Application 6 1. DL: Can I just take some instructions. … I’d ask for bail because 2. it is not alleged there were threats to the complainant. So in 3. terms of section 12, concerns might be minimized. He has also 4. witnessed a significant assault at Risdon prison in his unit. This 5. has had a sobering effect. He is nervous going back to prison. 6. He will do everything necessary to avoid going back. 7. M: Miss Green, if I do not bail him today, how does it affect the 8. assessment? 9. DL: This can take place in custody but the program may not accept 10. him for 6 weeks. 11. M: One alternative is to remand in custody until the assessment 12. and then bail to the Program. [Looks at welfare officer from a 13. religious charity in court] Is this possible? 1 4. C: I’m the chaplain who links with the agencies. I can contact 15. the program. 16. M: [turns to the defendant]. One thing I can do is to remand you 17. in custody to allow you to detox. If you are assessed to be 18. suitable for the program and a bed is available, I can grant 19. bail or you can make an application within 24 hours. Is there 20. a possibility of this? 21. C:

Yes. We have some clients coming from bail.

22. D:

’Scuse me, Your Honour, can I say something?

23. M:

You’d better speak to Miss Green.

24. DL: [Speaks to the defendant in the dock]. There are two things 25. Mr Derran would have me raise. The first is there is a delay 26. getting into the program. I’m not sure if Mr Stanley can assist 27. C:

This has been an ongoing issue.

28. DL: I’m willing to make the calls. Michael Young is the appropriate 29. person to speak to. The second is that Mr. Derran has pancreatitis. 30. He is in pain. He has not received his usual medications in 31. prison. He has indicated he is nervous about returning to prison.

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32. M: Stand up please, Mr. Derran. I note that you have a person 33. in Miss Wilson who can look after you. I also note that you 34. were residing with that person on [ ] when taken into custody 35. again after the breach of the Family Violence Order. Under 36. section 12 of the Family Violence Order, I must not grant 37. bail unless I am satisfied the complainant is no longer at any 38. risk. It is the case that bail was granted and then three hours 39. later you were at the address highly intoxicated. 40. D:

Can I say something?

41. M: Just be quiet. I’ll remand you in custody till tomorrow morning 42. 10am and let Miss Green speak to the program. You can then 43. be bailed to them. 44. D:

Can I please say something?

45. M: Yes. 46. D: It takes six weeks. Then there is my pancreatic [condition]. 47. I can only get the medication from my doctor. 48. M: The warrant I have will say you need specific medical assistance. 49. D: My doctor is away. I was also hospitalized on Thursday and 50. Friday. I can’t do normal things in the unit. 51. M:

The gaol will look after you.

52. D:

I want to get into the program or into [ ]

53. M:

Miss Green will look into this and

54. D:

How can I [ ]

55. M: She will make the inquiries [Miss Green motions him to calm 56. down]. 57. DL: I will find out. 58. M: Sorry. Take him down please for 10am tomorrow. DL: defence lawyer, M: magistrate, C: chaplain providing welfare services, D: defendant

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This hearing rather starkly demonstrates that, in this court, only a limited amount could be achieved in offering therapeutic or welfare programs at the pretrial stage. Ideally it was not desirable to send an alcoholic to the maximum security wing of a prison after breaching a non-contact order. But there was no other way of protecting his ex-partner under section 12. In this application, the magistrate apologized to the defendant (line 58), before asking the guard to “take him down”. This defendant was an alcoholic to the extent that he was drinking himself to death. Most defendants did not have a medical problem, but they committed offences after excessive drinking. Consider, for example, the following breach of bail. This defendant committed a breach of a curfew, unusually by phoning police near the property where he was staying in an intoxicated state and asking to be sent to prison. Application 7 1. P: It might seem a minor matter but Mr. Brown breached bail 2. on [ ] on his curfew. He was residing at [ ] from 7am to 9pm. He 3. called police from a phone box near this address, intoxicated. 4. He was taken to police station. He said that he had a machete 5. and wanted to go to prison. … He was bailed to appear on [ ] 6. to reside at [ ] with a curfew between 9pm and 7am. On 4am 7. of [ ] police checked and he was not present. On [ ], a yellow 8. Mitsubishi was stolen. Items in the car were forensically linked 9. to the defendant who was on bail. Your Honour, he lives with 10. his mother and continues to offend …. 11. LA: Mr. Brown currently resides at [ ]. He has to stay there between 12. 9pm and 7am. He instructs that tensions between his mother 13. and grandmother caused some problems. Unfortunately, Mr 14. Brown on that night had an argument and was asked to leave. 15. He left and does not recall saying he had a machete. In any 16. event he has phoned [his girlfriend] and she is more than happy 17. to have him staying there. It is my submission Mr. Brown is 18. not trying to leave the jurisdiction. He phoned the police to 19. report a breach of bail. He committed [serious] offences in 20. 2011 and 2012 but has seen some improvement since then.

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21. M: Once again difficult circumstances. The court gets to see that 22. he has been doing breaches. The conditions are to protect the 23. community. I will remand until [ ] at 9.15am. If he wants to 24. go to the Supreme Court he can go, but we will see him on [ ]. P: prosecutor, LA: Legal Aid lawyer, M: magistrate. It might be assumed that the magistrate is commenting in line 17 on the “difficult” social issues, perhaps alcoholism or family breakdown that could not concern the court when reaching a decision since it could only assess legally relevant factors. Yet this is almost certainly the wrong way of understanding these remarks. For the magistrate, the key legal issue was that the defendant had “been doing breaches” (lines 17–18). He had been linked “forensically” to stealing a car (line 7), even though he had not yet been charged with this offence. The prosecutor noted that, even though he lived with his mother, a condition of the original bail application, he continued to offend (line 8). In this case, there were no second chances. However, the magistrate acknowledged that a fresh application could be made to the Supreme Court (line 19) perhaps because, even though there had been previous breaches (including stealing a car while on bail), this breach of a curfew hardly put the public in danger. But what is more interesting is that the court had no interest in the personal circumstances of the defendant.

Mental Illness Courts recognize that the mentally ill are a particularly vulnerable group and require special services and treatment. In Tasmania, South Australia and Victoria, there is a mental illness court. This is a deferred sentencing process in which the magistrate supervises progress on guilty pleas with the aim of keeping defendants out of prison (Newitt and Stojkevski 2009). The court does not provide services but encourages defendants to obtain medical advice and take their medication. There are, however, strict criteria for entry to the list in that the defendant must be diagnosed as having a recognized mental illness. Such criteria can often be found online in each jurisdiction.

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The following extract from a transcript of a hearing in Tasmania illustrates how a defendant who had applied for bail was referred by the magistrate for assessment in prison by the Forensic Mental Health officer. He had assaulted his elderly neighbour, allegedly in a frenzied attack with a pitch fork. Application 8 1. P: The incident took place at 7pm on [ ]. The complainant at the 2. time was doing washing up. The defendant was yelling and 3. banging on the door. The defendant became enraged thinking 4. Mr. X was staring at him. The defendant grabbed him through 5. the fly screen of the window and attempted to pull him through 6. the window. The complainant managed to free his hand but 7. the defendant threw various items …. 8. 9. 10. 11. 12. 13.

At the time of the incident, Tasmania police and the ambulance service attended. The defendant was placed under arrest and detained overnight since there was a problem in obtaining a statement. Forensic services attended the scene and found a large pitch fork covered in blood. It was likely that this was used to puncture the defendant’s body.

14. 15. 16. 17. 18. 19. 20.

At 9.15am the defendant participated in a recorded interview. The defendant states he had six beers during the day. He had ongoing issues with the complainant. The complainant had poisoned his dog six months ago and he complained he stared at him all the time. He stated that he had had enough …. He denied using the pitch fork and stated he did not use excessive force ….

21. 22. 23. 24.

In relation to the bail application Your Honour, I can indicate that … I have spoken to [ ] council and they have asked him to vacate his unit. Our application for a restraining order may change depending on his bail status after this application.

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25. M:

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Miss Brown

26. LA: He has resided at [ ] for two and an half years. His instructions 27. are that he can reside with his 26 year old daughter in [ ]. He 28. has two other daughters, aged 16 years and ten years. He has 29. sole care. 30. 31. 32. 33. 34. 35.

He last breached bail in 2003. He can comply with the conditions of a curfew if required and comply with conditions [ ]. My submission is that a restraining order not to go to that address can be complied with (the police can assist in getting his belongings). My submission is that relocation would provide the complainant with security. These are my submissions.

36. M: [two minute pause] This is another case where one imagines 37. the Prosecution summary of the charges perhaps misses the 38. mark a bit. [His behaviour might suggest] paranoia and mental 39. instability. If I had a surety, not a daughter but someone in 40. authority prepared to take an interest, I might take a different 41. view. So I would like some evaluation of the applicant to fill 42. in the holes. Maybe the Prosecution will ask me to make an 43. order that he be examined. So bail is refused till [ ] of the month 44. by video link. I’ve left the bail application open. P: prosecutor, LA: Legal Aid lawyer, M: magistrate This application for bail was postponed for three weeks because this was the next date the magistrate was sitting, and would give enough time for an assessment, and perhaps it would then be possible to enter a plea to the charges. The hearing illustrates that, in this court (which is similar to most courts in Australia), agencies have little time to investigate social or psychological issues. The prosecutor did not see this level of violence in an apparently unprovoked attack as unusual behaviour, or did not feel that it was appropriate to suggest an assessment. The Legal Aid lawyer had little time to take instructions because

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she had an hour to see six defendants. In this submission, we learn very little about the defendant. It was also unclear from the hearing what would happen to the two younger daughters (lines 28-29), although presumably they could stay with the older daughter. Our understanding is that, if there were psychological factors, there were no suitable programs locally in the community that could be offered along with supervision. The most likely outcome would be that the defendant would spend time in prison, and perhaps receive therapeutic treatment in that environment. In some States, defendants with psychological problems received help from medical professionals. They were based in police stations and employed their own judgement in making a diagnosis or offering treatment. It was not always clear from the court hearing what, if anything, had been done. Nor was it of relevance to legal decision-making: Application 9 1. M: You’re faced with two counts of breaching bail. Not being at home 2. when you’re meant to be. In your circumstances, I’ll sentence 3. you to two days backdated today. 4. D: I didn’t sign in. I tried to [ ] 5. M:

Oh I see. You did not sign in.

6. D: 7.

I couldn’t go there. I didn’t make it there. It is something to do with the screaming I get.

8. M: OK. You live at the address [ ]. I’ll grant bail and remand to 17 9. November [three weeks’ time]. This magistrate from South Australia initially thought that both counts of breaching bail involved breaching a curfew (line 2). When the defendant indicated otherwise, he looked at the papers and corrected his mistake (line 5). The breaches were for failing to report at a police station. The “screaming”, presumably in his head, appeared to hold no interest for

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the court (however, it is not clear what was meant in line 2 by “in these circumstances”). These transcripts illustrate how most magistrates make bail decisions through assessing the risk of not appearing or committing further alleged offences. They do not normally engage therapeutically with defendants or have the resources to provide social or psychological support.3

Homelessness The third vulnerability that courts recognized as relevant in bail applications was homelessness. From a purely technical point of view, homelessness as a vulnerability criterion is difficult to pin down. It is not always mentioned in legislation, but is often found in matters of policy (Bartkowiak-Théron and Asquith 2012b). It is, however, often a key consideration in bail decision-making. A first consideration for bail is often whether the defendant has an address. It is assumed that, if defendants cannot be contacted or located, there is no guarantee that they will attend the next court date. To address this problem, and as observed in our research project, courts draw on whatever suitable short stay housing is available. In South Australia, a religious charity had built a bail hostel with 40 beds. Provided there were places, a defendant could obtain bail. This, however, simplifies matters since there are different kinds of homelessness. We found that very few of the 150 bail applications were made by defendants living on the street. This may suggest that those defendants received police bail and did not reoffend.4 Other defendants are pursuing a transient lifestyle connected with a drug habit. In this case, a hostel

 Therapeutic engagement is practised in drug courts in which defendants plead guilty (for an observational account in the USA, see Burns and Peyrot 2003). Only a small proportion of defendants are eligible for diversion to these specialist courts. 4  An informant suggested that homeless people commit minor offences and have relatively few priors. They already receive assistance from a number of agencies, and are likely to attend court. This is what Sudnow (1965), writing about plea-bargaining, would describe as a “normal crime”. If homeless defendants have these characteristics, they are granted bail. 3

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provides an opportunity for supervision, and possibly treatment, in addition to having a mailing address. Application 10 [D appears on the video-link]. 1. M: [Reads documents supplied by the prosecutor, and writes]. You 2. want a few minutes Mr. Prosecutor. 3. P: 4. 5. 6. 7. 8. 9. 10.

That’s fine. [Reads the file]. I do oppose release. He’s on a bond for an offence of violence. Reckless or senseless assault. It was certainly senseless. A number of people were around and it caused injuries. Oh there was a bond for common assault last year, it still had a length to run. Your Honour, the concern is he committed serious offences and is a danger to the public. Your Honour, if bail was granted I’d ask for a restriction on alcohol and drugs.

11. M:

The facts don’t state he has an address.

12. DL: He’s homeless. He has a disability pension from a number of 13. head injuries. He could report daily to King’s Cross police 14. station. [ ] 15. M:

Taking any medications?

16. DL: No 17. M:

Anything further?

18. D: 19.

I could not say he is not at risk of a custodial sentence. Not necessarily a full-time sentence.

20. M: 21. 22. 23. 24. 25.

[3 minutes while writes] Mr H has assault charges. In the middle of the city he threw a bottle in the air and it struck a passer-by on the leg causing Actual Bodily Harm. [ ] It is accepted he was identified the next day by CCTV. The Prosecution oppose bail [ ]. I note the length of his record but in the last 10 years there has only been one common assault, a street offence. He had

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26. 27. 28.

a good behaviour bond and was released last July. His last custody was served in 2002. Going back there is non-compliance with bail conditions but several years ago.

29. 30. 31. 32. 33. 34. 35. 36.

I’m paying attention to homelessness, history of violence and there appears a very strong prosecution case. It is accepted that he could receive 4–6 months in custody. Given the allegation, he would not receive full-time custody in the sentence. I note these problems. The remedy is daily reporting and restrictions on alcohol and drugs. Bail is granted subject to these orders. To report to KC station 8am–8pm daily. [ ] Not to drink alcohol or take drugs. Do you require a place restriction Mr. Prosecutor?

37. P:

The corner of George Street and Liverpool Street.

38. M:

That’s just round here!

39. P:

With the exception of going to the court.

40. M: 41. 42.

He’s breaching that if he goes to court. I think 100 metres [from the corner] is sufficient. You understand the bail conditions Mr. F?

43. D:

Yes Sir.

44. M: 45. 46. 47. 48.

Stay away from those with alcohol and drugs. Downing Street in 2 weeks 15th June. You know where Downing Court is. It’s on the corner of Hyde Park. When the police see you they will see if you have been drinking alcohol. Knock on the door and you’ll be released.

A few aspects of this decision are unclear and illustrate the limitations of court observation in understanding legal and practical issues. Firstly, it would appear that the prosecutor was mistaken in stating there was a good behaviour bond (line 3), although the magistrate may have been referring to a bond for a different offence (line 26). Distinctions can be made when reading a prior history that makes possible a lenient decision. The magistrate does, however, refer to a history of violence. Secondly, a reader with a legal background might want to know more

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about the assault. It sounds like the bottle was thrown recklessly by someone who was intoxicated. From a legal perspective, a drug habit caused by a brain injury, and in the circumstances of being homeless, does not excuse criminal liability for reckless behaviour. One could, though, argue that the criminal law could do more in recognizing the social problems of such defendants. Thirdly, it is intriguing that certain types of offences in New South Wales do not lead to “full-time sentences” (line 17). It is possible that some of the defendants who were homeless before imprisonment are in this category.5 They obtain bail and short periods of imprisonment since the courts view homelessness as a mitigating factor. It is perhaps important not to get drawn into technical questions about law and procedure that cannot be answered with the information available, when it is possible to make more general observations. This transcript illustrates very clearly that the magistrate in this court has a traditional role of assessing and managing risk, but without offering social support or welfare services. He seems more sensitive than the prosecutor in drawing attention to social issues. But the magistrate in this traditional criminal court is not a social worker. He has no interest in providing a homeless defendant with housing or helping him manage a long-term medical condition. The only advice is to stay away from homeless people who take drugs, and possibly other associates who do have housing but congregate on the street. The police will be patrolling the area and will see if there has been a breach. The bail condition prevents this defendant living at home (the corner of two streets). It should not be assumed that homeless people applying for bail have nowhere they can live (Australian Institute of Health and Welfare 2018). The following application for bail was made by a defendant with a drug habit. This could perhaps be viewed as a case of homelessness. The defendant had chosen to leave his parent’s house, and was moving between  This is an example of how interviewing an insider is necessary to understand a transcript about some technical activity (Maynard 2003). Our understanding is that a “part time” sentence refers to a non-custodial sentence, for example an intensive one-day course. 5

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couches and his car. In these cases, defendants do not necessarily see themselves as victims of circumstances or understand a transient lifestyle as a problem. For some criminality is a lifestyle choice. Application 11 1. M: [to the Informant] Your evidence puts Mr. M in a ‘show cause’ 2. position. What are your concerns? 3. O: 4. 5. 6.

He is living out of his car. Also, he’s breached his bail and committed indictable offences on bail. He admits he is a drug addict. $100 a day. Our concern is that he will continue to offend.

7. M: 8.

In terms of his history, you produced 7 pages of history. Mr. M do you want to be shown your prior history.



[no questions]

9. M: 10.

Mr. M you are in what’s called a show cause situation. [ ] At present it does not look good for you. [ ]

11. D: 12.

I do have somewhere to go. It is in [ ]. I have been there for three weeks.

13. M:

Who lives there?

14. D:

A family friend [ ].

15. M: 16.

This is raised for the first time now. I see there is a $100 a day habit. Is this the right amount for him? How do you fund that?

17. D:

[ ].

18. M:

You take other people’s property.

19. D:

My plan was to …

20. M:

What treatment have you been doing?

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21. D:

I’ve been going to corrections and rehabilitation.

22. M:

You have not been earning money.

23. D:

I had employment in September.

24. M: 25. 26. 27. 28. 29.

But the offences alleged are in February, March and April [ ]. I’ve got to assess the risk now. You’re likely to reoffend. And I’m not prepared to take that risk. I’m going to knock you back on bail and I’m going to remand you in custody till 11th April [two months] when all matters are listed. Any problems in custody? At this stage then bail refused and next appearance 11th April.

This defendant had been arrested during the morning and there had been no time to see a legal aid lawyer. It is interesting that, even though there has been offending on bail, the first reason given for opposition by the police officer was homelessness. The defendant was allegedly sleeping in his car, although he claimed that he had been staying with a friend for the last three weeks. One might expect that a defendant with a drug habit would not obtain bail, given that he was likely to commit more burglaries. Nevertheless, the application suggests that it is still possible to overcome the show cause provision. A magistrate might grant bail if there was stable housing. However, it also seems clear that this would have to be combined with another attempt at rehabilitation for the drug problem.

Structural Inequalities Groups that are subject to systematic discrimination should be distinguished from defendants with individual vulnerabilities such as drug users or the mentally ill. Academic literature adopts different approaches to understanding how structural inequalities are relevant in everyday and professional activities. In courts, quantitative researchers look for factors that influence decision-making (e.g., Sanderson et al. 2011; Weatherburn 2014). An alternative approach is to examine how structural inequalities, and not simply individual vulnerabilities, become relevant in legal hearings. There are also debates on whether magistrates should recognize the

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structural problems when sentencing and talking to defendants. Three examples will illustrate how membership of a structurally disadvantaged group can become relevant in bail applications.

Youth Relatively few people over the age of thirty come before the courts charged with any offences (Weaver 2015). The vulnerable character of young people is recognized by the criminal justice system in a number of ways. One is that they are viewed as easily influenced. Another is that they can be harmed more than adults, for example, if sent to a detention centre. Children’s courts were established in Australia during the 1990s to give young defendants special treatment and several chances (Sheehan and Borowski 2011). This research project did not examine bail applications in children’s courts (see Richards and Renshaw 2013). It was, however, clear that even when defendants turn 18, the courts often give them special treatment. In one application, the magistrate gave advice to a young person, as if he was still in a children’s court. He had fallen into bad company and should think carefully about his direction in life. In another hearing, the researcher was surprised when a defendant, apparently with a previous record, including breaches, obtained bail without the magistrate hearing arguments. The magistrate did, however, note that “this is your first time at court”. He meant that this was the defendant’s first time in adult court.6 Yet critical criminologists would see this response to the problems of young people as inadequate. Collectively, they should be recognized as a disadvantaged and subordinate group. Criminal courts have a poor record in addressing abuses by adults, and it has required a Royal Commission to recognize ill-treatment by detention centres (Doel-Mackaway 2017). Many defendants were in their late teens or early twenties. Yet the court had no interest in examining their family circumstances.  This demonstrates that, even though magistrates sometimes employ code, they often give reasons for their decisions. It is also possible that an identity might not be mentioned in court. But the practitioners would still know why there was a lenient decision. 6

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Poverty One might assume that when legislation asks magistrates to take into account “home environment and background” this would include economic circumstances. It is a truism that not every disadvantaged person commits criminal offences. But many do, and it seems likely this way of life arises from disadvantage and lack of opportunity. It is also no accident that some religious charities in Australia offer services to those attending hearings in the lower criminal courts. One chaplain from the Salvation Army told us that some defendants had not eaten for three days. In the central court in Victoria, there was a notice on an office door for a charity saying that sandwiches and beef burgers would be available from 12 p.m. Depending on your political leanings, it is possible to view those experiencing economic insecurity as victims in need of help, or as beyond help. A defence lawyer was fatalistic, believing that deep-seated, even intergenerational social problems caused offending: They have no motivation to work. You might be third generation unemployed. You have no incentive. Why should you do anything at school? Because your Dad hasn’t been working for a long time and your grandfather was in and out of things. I’ve even got fourth generation clients. I started off with some approaching middle age in the 70s, gone through them, the sons, grandsons and now moving onto the great grandsons.

For a similar view, consider this assessment by Malcom Feeley: By conventional standards nearly all the defendants are failures, both in life and in crime. They are poor, often unemployed, usually young, and frequently from broken homes. Most of them lack self-esteem, motivation, skill and opportunity. A great many of them have come to rely on alcohol and drugs, and problems related to their use often bring these people into court. Breach of the peace and disorderly conduct are the most common charges handled by the lower courts; they often stem from actions fuelled by alcohol. For many of the defendants, petty theft is a way of life that they pay for with an occasional appearance in court. (Feeley 1983, p. 4)

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Whether or not one agrees that poverty causes crime, it is not surprising that economic disadvantage is never mentioned during bail applications. It is not relevant to the decision and is not considered as a mitigating factor when sentencing. Nevertheless, in a strange way, courts recognize vulnerabilities that are caused by structural economic disadvantage. This happens when the difficulties experienced by defendants can be attributed to individual failings or misfortunes such as drug and alcohol addiction, mental illness, and homelessness. Most courts acknowledge that more defendants could be bailed if it was possible to address these issues.

Indigeneity The largest literature relating to structural disadvantage in the Australian criminal justice system concerns the over-representation of those from an Indigenous background.7 This literature is complex, and we cannot address all the substantive and methodological issues, and the sometimes politically charged debates between criminologists, in this study.8 We observed very few bail applications by Indigenous Australians. This is partly because we only conducted fieldwork in metropolitan courts (see also Allan et al. 2005 who acknowledge the same problem). In addition, we only observed a small proportion of applications in these courts. Nevertheless, much can be learnt from single cases, especially because practitioners viewed these applications as normal, and not newsworthy or requiring comment. Australia is a multi-ethnic society, and there are the usual problems one would expect as migrants adapt and overcome economic and cultural barriers. Indigenous Australians have experienced dispossession and systematic discrimination arising from colonization. The history and culture of Indigenous communities is complex. There are, for example, significant differences between those living a traditional cultural life in remote communities in Northern Australia and those who have moved, or been moved forcibly, to cities. There are also significant differences in the imprisonment  We are using the term “Indigenous” to include both Aboriginal and Torres Strait peoples.  We hope that this section demonstrates more than a token engagement with this urgent political issue. 7 8

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rate in different States and territories. The statistical evidence of differential outcomes in criminal justice is clear and disturbing. According to the Australian Bureau of Statistics (2019), 3.3% of the population are Indigenous. But the data collected in States for 2017–18 indicates overrepresentation among finalized defendants: 16% (New South Wales), 23% (Queensland), 19% (South Australia) and 78% (Northern Territory).9 Over-representation has been recognized as a national political issue since the 1987 Royal Commission into Aboriginal Deaths in Custody.

P  olitical Debates There is no dispute among criminologists about the problems affecting Indigenous communities. They also agree that the causes are colonization and dispossession. Weatherburn (2014, pp. 150–151) offers a structural explanation for offending: Loss of employment [during the 1970s] meant that large numbers of Indigenous Australians lost the toe-hold they had established in the mainstream economy. Their forced removal from ancestral lands would have had a destructive effect on their sense of cultural identity. These two events on their own might not have triggered a rise in Indigenous offending, but they coincided with the lifting of restrictions on the sale of alcohol to Aboriginal people. The combination of boredom, poverty, alienation and alcohol abuse that followed the lifting of these restrictions almost certainly increased rates of Indigenous offending, especially intra-­communal violence.

This explanation, however, falls a long way short of condemning colonialism or making a political case for empowerment. It also down-plays or dismisses the possibility that the police and courts could discriminate against, or target, those from Indigenous communities (Cunneen et al. 2013). These debates and arguments arise about policing subordinate groups internationally. They have resulted in a politically charged debate amongst criminologists in Australia.  In 2009, Indigenous Australians were 2.5% of the national population, but made up 26% of the prison population (Weatherburn 2014, p. 1). 9

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I nterpreting Data What makes criminology interesting is how political debates inform choices about the collection and interpretation of data. Jennifer Sanderson et al. (2011) demonstrate how a careful analysis of statistical information obtained from both a police organization and courts can test claims made in political debates about discrimination. They found that there was over-­ representation of male Indigenous people in Queensland, but this was mainly due to the amount and nature of their repeat offending. They also demonstrate that lack of employment and family ties led defendants to be remanded. By contrast, Diane Eades (2008), as a sociolinguist, examined one legal case in the same State.10 She demonstrates how methods employed in cross-examination of young Indigenous witnesses, that exploit cultural and language differences, maintain “neo-colonial control”. It might be argued that Eades is too ready to generalize from one case to the entire legal system. Yet this case, described in great detail by Eades can hardly be dismissed. It demonstrates that courtroom rules of evidence discriminate against Indigenous defendants.

Two Bail Applications In our visits to courts in Tasmania, South Australia, Victoria and New South Wales, we saw few examples of Indigenous Australians applying for bail. This is partly because we conducted research in metropolitan courts, but also because magistrates do not normally acknowledge this identity during hearings. There are also circumstances that drive individuals to not divulge their (sometimes invisible) ethnicity or background (Bartkowiak-Théron and Asquith 2012b). One magistrate when making a decision told the defendant that he had decided to grant bail, after considering the circumstances and “taking into account your indigeneity”. This background information was probably supplied in the statement of  The case concerned three Aboriginal boys aged twelve, thirteen and fourteen who were told by police to get into police vehicles after being found late at night in a Brisbane shopping mall. They were driven 14 kilometres out of town and left to walk home. Charges against police were later dropped by a magistrate (Eades 2008, p. 3). 10

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facts that was not read out during the hearing. Nevertheless, we observed many defendants, often through a video-link who might be Indigenous. Some were silent in a submissive posture. Others were angry or incoherent, and muted by the magistrate. One could imagine they might have an Indigenous background, although there was no means of learning more about their background. On two occasions, the issue of indigeneity became relevant to practitioners. The first was when an Indigenous woman appearing at the central Magistrates Court in South Australia could not give the magistrate an address. She said she lived on South Road, and the magistrate drily said “I know the area”. The prosecutor later told us that South Road is 60 kilometres. This was a cultural issue common to Indigenous people living in rural areas. They knew where they lived, but did not have an address. This defendant had already been in custody for four days. Community Corrections would investigate and, if needed, find her a place in a hostel. In one application, indigeneity was raised as a political issue by the defendant: Application 12 The defendant was an Aboriginal woman. She had a bruise on her face. 1. M: You OK? Alright I’ve got the facts from XY your solicitor at X’s. 2. He said to adjourn the matter till next week. You’ve got another 3. matter on that day. They’re not making an application for bail 4. today. I’ve made a note for someone to see you about your eye. 5. You’ll hopefully be taken to [a women’s prison] 6.

D:

Why was I brought to court for other matters?

7.

M:

I have a letter from X’s. I can show you this.

8.

D:

Why can’t they be here today?

9. M: 10.

This court is only sitting as an emergency court [ ] I personally know XY is not working there.

11. D: 12.

I’m sorry I’m not arguing with you but with my lawyers. [He should be here]

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13. M: 14.

It’s the end of the year and a lot of people don’t work. Well, you’re charged with two counts of unlawful assault.

15. D: 16.

They’ve tortured my big toe. They pulled my toe. I shouldn’t be here. I’ve done nothing wrong.

17. M: 18.

You’re charged with assault on these two people, X and Y. It is alleged it happened on [ ].

19. D: 20. M: 21. 22.

No I don’t know them. So who will be representing me on the 3rd. Someone from X’s. XY is on holiday. He is leaving X’s in the near future, I know this. I saw him before Christmas. I’ve made a note that you’re an Aboriginal person and at risk from self-harm.

23. D:

I don’t care. Your Honour that is not true.

24. M:

I’ll delete this. Well it is true you are an Aboriginal person.

25. D: 26.

Yes. But not that I assaulted anyone. All these are corrupt officers they’re all fucking with Aboriginals.

27. M: 28.

Just watch your language. As things stand, I’m adjourning till January, let me finish, and I’ll ask the Registrar to contact X’s.

29. D:

And do I get to go to [ ]

30. M:

If you get taken to [ ]. That’s for the Corrections people to decide

31. D:

I don’t [want].

32. M:

It’s for the custody officer to decide.

33. D:

No one is allowing me to smoke cigarettes when I am locked up.

This magistrate was unusual in often engaging in a conversation with defendants, even when they were represented (“You OK?”, line 1). In this case, he defended a law firm and the prison service in response to complaints. He gave organizational reasons to explain and justify why the law firm could not attend. He was not, however, prepared to engage with

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the political complaint that police officers are “corrupt” in their dealings with Indigenous defendants (lines 25-28). There was no acknowledgement that a vulnerability might indicate a wider structural inequality.

Domestic Violence This review of different vulnerabilities that become relevant in bail applications would not be complete without also considering domestic violence. The vulnerable group in this case are victims who, following a series of high-profile cases, are protected either by tougher laws or by an informal “no tolerance” response by police organizations. As in most of the issues reviewed, it is difficult to be sure about numbers. It is also possible that the proportion of defendants refused bail varies considerably between States or even individual magistrates. We found, for example, that half of the bail applications in Tasmania related to domestic violence. However, in the overall sample across four states, these were only 20% of applications. Magistrates had to assess the risk of giving bail that could be reduced through imposing conditions such as a place restriction or reporting to a police station. One can make a case that the heightened media coverage means that many defendants are treated unfairly or alternatively that the courts are too lenient and endanger public safety. What also seems interesting is that courts have no interest whatsoever, at least when defendants apply for bail, in considering possible causes.11 Perhaps it is going too far to view the perpetrators of domestic violence as themselves vulnerable, since many spend months in prison because they are unable to stop assaulting women.  When defendants are found guilty, they are either sentenced to a short period of imprisonment or sent on a rehabilitative course. We understand that a third of those taking such courses change their behaviour towards women. What seems interesting is that there was no intervention, or an offer of voluntary participation in a program, before being found guilty. There was no indication by magistrates, even those sitting in a domestic violence court, that there was anything unusual in large numbers coming to the court charged with domestic violence. There was no acknowledgement that there was anything psychologically unusual about these assaults. 11

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Implications for the Criminal Court The main finding in this chapter is that, in the courts we observed, with the partial exception of Victoria, and unless magistrates were known to be particularly involved in problem-solving or therapeutic courts, bail decisions were made following strict legal criteria. Magistrates were concerned about the risk of a defendant not attending the next hearing or committing further offences. Unless it was relevant to this assessment of risk, magistrates did not seem to have an interest in addressing the social or psychological causes of offending. If an intervention might reduce the risk, for example giving someone housing, or treatment for alcoholism, they were constrained by the resources available. Many magistrates would appreciate more resources, but not wish to go further in advocating for more resources. There was no place in sentencing remarks to discuss non-­ legal issues or recognize the social causes of crime. Most courts did not ask defendants to attend rehabilitative programs until they were found guilty. By contrast, some welfare practitioners and law reformers would like criminal courts to go further in addressing vulnerabilities and structural inequalities. To use the terminology of welfare professionals, they want the court to meet social needs, in addition to applying the law on bail. There are, of course, different views on how this might be done. One practical challenge for specialist courts and pretrial services is how to intervene therapeutically without this undermining due process rights.12 This chapter has demonstrated that social problems and issues are relevant to bail applications. They were raised in about half of the applications observed. Magistrates already consider individual vulnerabilities such as drug and alcohol addiction, mental illness and homelessness. They are aware that those committing offences relating to domestic violence are not behaving rationally. The courts could go further in acknowledging structural inequalities. Collective groups, including young people and Indigenous Australians, experience discrimination and disadvantage, but this is concealed when responding to individual offenders. There is also a difference between defendants providing information about 12

 For different views, see Meekins (2006) and Wexler (2013).

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individual vulnerabilities or structural inequalities to strengthen a bail application, and courts offering integrated services informed by risk analysis. We will explain what this new bail system involves or might involve in the next two chapters.

References Allan, A., Allan, M., Giles, M., Drake, D. and Froyland, I. 2005. An observational study of bail decision-making. Psychiatry Psychology and Law. Vol. 12, No. 2, pp. 319–333. Australian Bureau of Statistics 2019 Criminal Justice Statistics. ABS, Canberra. Australian Institute of Health and Welfare 2018 Couch Surfers: A Profile of Specialist Homelessness Services Clients 2018. AIHW, Canberra. Bartkowiak-Théron, I and Asquith, N. 2012a “The Extraordinary Intricacies of Policing Vulnerability”. Australian Journal of Policing: A Journal of Professional Practice and Research, Vol. 4, No. 2, pp. 43–49. Bartkowiak-Théron, I. and Asquith, N. (eds.) 2012b. Policing Vulnerability. Annandale: The Federation Press. Brown, K. 2015 Vulnerability and Young People: Care and Social Control in Policy and Practice. Policy Press, Bristol. Burns, S. and Peyrot, M. 2003. “Tough love”: Nurturing and Coercing Responsibility and Recovery in California drug courts. Social Problems. Vol. 50, No. 3, pp. 416–438. Cunneen, C., Baldry, E., Brown, D. and Schwartz, M. 2013 Penal Culture and Hyperincarceration: The Revival of the Prison. UNSW Law Research Paper No. 2014–19. Doel-Mackaway, H. 2017 “The Royal Commission into NT youth detention has failed children”. ABC, Hobart. https://www.abc.net.au/news/2017-11-21/ nt-royal-commission-on-youth-detention-has-failed-children/9174860. Accessed November 2018. Eades, D. 2008 Courtroom Talk and Neocolonial Control. Mouton de Gruyter, New York. Feeley, M. 1983 Court Reform on Trial: Why Simple Solutions Fail. Russell Sage Foundation, New York. Klippmark, P. and Crawley, K. 2018 “Justice for Ms Dhu: Accounting for Indigenous deaths in custody in Australia”. Social and Legal Studies. Vol. 27, No. 6, pp. 695–715.

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Law Reform Commission of Western Australia 2009 Court Intervention Programs. LRCWA, Perth. Lexicon Ltd. 2005 Review of the effectiveness of specialist courts in other jurisdictions. Department for Constitutional Affairs, London. Maynard, D. 2003 Bad News, Good News: Conversational Order in Everyday Talk and Clinical Settings. University of Chicago Press, Chicago. Meekins, T. 2006 “Specialized justice: The over-emergence of speciality courts and the threat of a new criminal defense paradigm”. Suffolk UL Rev., Vol. 40, No. 1, pp. 1–55. Menninger, K. 1968 The Crime of Punishment. Viking Press, New York. Newitt, E. and Stojkevski, V. 2009 Mental Health Diversion List: Evaluation Report. Magistrates Court of Tasmania, Hobart. Richards, K. and Renshaw, L. 2013 Bail and Remand for Young People in Australia. Australian Institute of Criminology, Canberra. Sanderson, J., Mazerolle, P. and Anderson-Bond, T. 2011 Exploring Bail and Remand Experiences for Indigenous Queenslanders. Griffith University, Queensland. Sheehan, R. and Borowski, A. (eds.) 2011 Australia’s Children’s Courts: Today and Tomorrow. Springer, New York. Sudnow, D. 1965 “Normal crimes: Sociological features of the penal code”. Social Problems. Vol. 12, No. 4, pp. 255–264. Weatherburn, D. 2014 Arresting Incarceration: Pathways Out of Indigenous Imprisonment. Aboriginal Studies Press, Canberra. Weaver, B. 2015 Offending and Desistance: The Importance of Social Relations. Routledge, London. Wexler, D. 2013. “New wine in new bottles: The need to sketch a therapeutic jurisprudence ‘code’ of proposed criminal processes and practices”. Arizona Legal Studies Discussion paper No. 12–16.

7 Risk Profiles

There are significant differences between groups in the bail reform movement that complicate discussion of the policy issues. Those with liberal or progressive views in law schools have taken seriously the common law principle that a defendant should be viewed as innocent until being convicted of an offence. Some defendants charged with serious offences spend months in prison, only to be acquitted. From this perspective, tougher bail laws that reverse the onus of proof if, for example, an alleged offence has been committed on bail, seriously erode the right to liberty before conviction. By contrast, government officials seem mainly concerned about the financial implications when there is a rise in the bail refusal rate and do not talk about the erosion of due process rights. It is often pointed out that housing a defendant in prison is costly.1 Surely, are there not alternative ways of ensuring that defendants turn up at their next court hearing? The policy options to reduce the remand population are complicated. It is not always clear in the literature what is the distinction between a bail information scheme, a bail support program and pretrial services (which are delivered in different ways). Risk analysis, as practised in the  The Productivity Commission (2015) estimated $305 per day.

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USA, is a highly technical field. Discussions about policy are also complicated by the significant difference in institutional context between the USA and other countries. The differences are so great that they invite the question as to whether what happens in the USA has any relevance whatsoever to policy debates in Australia or the UK, or vice versa. It is certainly true that the research literature is highly compartmentalized and contextualized. Notwithstanding these potential difficulties, we will review the policy issues. The focus of this chapter is on risk analysis or, as it is sometimes called, risk profiling. This is already widely used in corrections programs internationally (Ward and Maruna 2006). It is also an effective initiative at the pretrial stage that has reduced the remand population in some US courts and certainly assisted low-income defendants who previously could not afford to pay a bond. The central idea is that it is possible to predict bail outcomes through collecting this information consistently and analysing it systematically using statistical techniques. Such programs are implicitly critical of judicial officers for making inconsistent decisions. They also undermine the purposes of punitive legislation, through demonstrating that most defendants meet bail. But they have also been criticized for making decisions that discriminate against racial and ethnic minorities. The risk profiling literature is critical towards judicial officers for exercising discretion (see Chaps. 4 and 5). Our argument will be that, although discretion can result in inconsistency and what appear to be arbitrary decisions (see also Hinton 2019), it also allows magistrates to respond to the circumstances of particular defendants in a way that is not possible with a standardized approach. We will conclude by considering the pros and cons of each system, and the issue of political legitimacy.

Risk Profiles in Corrections “Corrections” is a general term for the rehabilitative and punitive programs that defendants found guilty of criminal offences are required to undertake after sentencing. They include the non-custodial programs offered by Community Corrections, and the rehabilitative and

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educational programs offered within the prison system. Although there have been periods when such programs have been under threat, it would be fair to say that the goal of rehabilitation has survived and indeed flourishes in many correctional agencies. A significant factor in the strengthening and development of such programs has been the work of applied (forensic) psychologists. They have provided both a scientific rationale and methods to develop more effective programs and demonstrate progress. Although these methods are used in some pretrial programs in the USA, they have so far had little influence on bail decisions in most courts internationally. Nevertheless, it is difficult to separate different stages of criminal justice. It is important to understand how risk profiling is employed in Corrections, before considering how a similar approach is applied, or could be applied, to bail decision-making.

Risk and Needs Assessment Risk analysis by psychologists is concerned with different risks, for example, the risk of a convicted defendant committing a violent offence in prison or when released on parole. Against this, it is possible to reduce the risk through attending rehabilitation programs. There is a scientific approach to risk analysis. First, there is an attempt to measure risk precisely (possible because prisoners can be subject to a battery of psychological tests). The concept of risk itself is also more developed in law than its lay meaning. The popular “risk-needs-responsivity model” that has developed into a variety of specialist tools is intended to differentiate between risk factors and types of programs. This approach enables institutions, such as prisons, to identify different levels of risk and to allocate offenders to the most effective programs: Risk and needs assessment instruments typically consist of a series of items used to collect data on offender behaviors and attitudes that research indicates are related to the risk of recidivism. Generally, inmates are classified as being at a high, moderate, or low risk of recidivism. Assessment instruments are comprised of static and dynamic risk factors. Static risk factors do not change (e.g., age at first arrest or gender),

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while dynamic risk factors can either change on their own or be changed through an intervention (e.g., current age, education level, or employment status). In general, research suggests that the most commonly used assessment instruments can, with a moderate level of accuracy, predict who is at risk for violent recidivism. It also suggests that of the most commonly used risk assessments none distinguishes itself from the others when it comes to predictive validity. The Risk-Needs-Responsivity (RNR) model has become the dominant paradigm in risk and needs assessment. The risk principle states that convicted offenders need to be placed in programs that are commensurate with their risk level; in other words, provide more intensive treatment and services to high-risk offenders while low-risk offenders should receive minimal or even no intervention. The needs principle states that effective treatment should also focus on addressing the criminogenic needs that contribute to criminal behavior. The responsivity principle states that rehabilitative programming should be delivered in a style and mode that is consistent with the ability and learning style of the offender. (James 2018, p. 12)

An important part of such assessments are efforts to measure outcomes. Psychologists recognize, for example, that there can be “false negatives” when predicting future offending: One consideration is the distinction between the reliability and the predictive validity or accuracy of risk assessment measures. Reliability is a statistical term used to refer to the consistency of results obtained from a measure. There are a variety of ways in which reliability is evaluated or characterized, including internal consistency (do the items of the instrument correlate with each other and the total score), test-retest (are the results consistent from one point in time to another), and the inter-rater reliability (do two different assessors obtain similar results on the measure). … It is important to note that a measure can be reliable (i.e., consistent), but not particularly valid (i.e., not accurate in predicting an outcome). (Day 2018, pp. 4–5)

Despite these difficulties, studies by forensic psychologists have shown that “structured” approaches to risk assessment can achieve greater validity than relying on a professional’s personal knowledge of an offender (Monahan and Steadman 1994; Day 2018, p. 3). This scientific approach

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now underpins many rehabilitative programs in Corrections. Agencies employ a variety of instruments in assessing risk and placing offenders on rehabilitative programs.

Effectiveness and Fairness There are large critical, as well as appreciative, literatures about risk analysis in corrections. One criticism might be that there have only been modest achievements in predicting recidivism or reducing the risk through allocation to programs. It is claimed in some US programs that one can predict violent behaviour for 70% of a cohort. This suggests that 30% are “false positives”, a concerning figure. In Australia, half of the sentenced prisoners are back in prison after a year (ABS 2018). This does not mean that we should go back to making intuitive judgements when allocating offenders to programs. It does perhaps suggest that it may be too late to assist people once they have spent time in prison. Another criticism worth mentioning is that predictions about recidivism may inadvertently be influenced by racial bias or simply by accepting crime statistics at face value. One US study found that a high percentage of black people reoffended (Reisig et al. 2007). This statistic could be used in an actuarial guide, allocating offenders to low-, mediumor high-risk programs. But one might want to know more about the circumstances of these offences. We know, for example, that black people are more likely to be arrested than white people. So it is possible that what appears to be an objective, scientific approach is blind to possible discrimination against racial and other minority groups.2

Risk Profiles in Bail Decisions Although the connections are not always clear in the literature, there seems no doubt that the bail reform movement in the USA draws on similar assumptions to those that inform rehabilitative programs in  This criticism of scientific programs that seek to identify the causes of crime was advanced some years ago (Becker 1972). 2

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Corrections. There is the same interest in measurement, and the same approach to measuring risk, and balancing this against the effects of different programs. In this section, we will start with some background on the Manhattan Bail Project, one of the first attempts to employ risk analysis at the pretrial stage (Sturz 1963). We will then look at how the program has developed and some criticisms. Since this book is partly about policy transfer, it is important to recognize the many institutional and cultural differences between countries.3 The USA is distinctive in three respects. First, it has a very high overall rate of imprisonment. Those who receive a non-custodial sentence for minor offences in Australia are sent to prison in the USA. Second, there is a much stronger quantitative tradition in social science and a commitment to scientific methods and evidence-based policy across public sector agencies. Third, the USA has gone further than many other countries in privatizing the operation of public services, including the process of releasing defendants on bail (Baughman 2018).4 We should not expect reform initiatives on bail that originate in the USA to have much relevance to other countries. It is, however, important to understand how risk analysis is employed in US courts, before making a judgement.

The Manhattan Bail Project The bail reform movement in the USA is distinctive internationally in that it is not seeking more generous laws that will result in more defendants obtaining bail. Instead, the main objective is to end a commercial bond system, and return decision-making to judicial officers. The current bail system in most States makes it possible for most defendants to pay for release from prison. This system has been much criticized for imprisoning defendants with low incomes who have committed minor offences,  For a discussion of policy transfer in relation to therapeutic jurisprudence from drug courts in the USA to other jurisdictions, see Nolan (2011). 4  The US government seems comfortable with offering services through private companies. In most states, bail services are provided by bail bondsmen. Where reform initiatives have been successful, pretrial services are provided by not-for-profit agencies. There is no equivalent in Australia outside Serko, an agency that manages the off-shore detention centres and a few privatized prisons (O’Malley 2010). 3

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sometimes for long periods (Baughman 2018). It has resulted in many more having large debts through coming into contact with the criminal justice system. The system also encourages or turns a blind eye to corrupt practices (Bauer 2014). It is said that defendants can obtain a better chance of bail through working with bondsmen who have good relations with the court. The Manhattan Bail Project, conducted by the VERA Institute, followed a series of reports about the shortcomings of this privatized system (Baughman 2018). In the 1950s, there had still been no substantial reform at a local or national level. The VERA institute was established by a philanthropist, supported by New  York University Law School, and with support from senior judicial officers, to address the bail problem. The aim was to encourage magistrates in one court to release defendants “on their own recognisance” without asking for a bond. It made this case through employing what was presented as a scientific experiment about the work of a court. This sought to demonstrate that defendants with community ties would meet bail (Sturz 1963). In a pure experiment, one would want to measure the effect of community ties, such as having lived for a few years in a neighbourhood (Lazarsfeld 1974), in meeting bail through randomly allocating defendants to two groups. Few experiments conducted by social scientists live up to this standard, and the Manhattan Bail Project provides a good example of how compromises were made to overcome practical and ethical problems. VERA employed law students to interview those defendants applying for bail. Information about community ties was supplied to judicial officers. This resulted in many defendants with good community ties being given bail. The researchers then obtained information from the court on bail outcomes: whether these defendants met bail or committed further alleged offences. This made it possible to employ the level of community ties as a predictive factor for bail outcomes. The information was given back to magistrates as an actuarial guide, with the aim of starting a virtuous cycle. After the experiment had become institutionalized, most defendants with community ties obtained bail. Previously many of them had been remanded in custody. The public could have confidence in bail decisions both because the information on

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outcomes was made public and because it was validated by the latest scientific methods.

Risk Analysis as a Scientific Program Bail research has become increasingly sophisticated, and it no longer focuses on community ties.5 The work of VanNostrand and Keebler (2009) is impressive, made possible by cooperation from federal courts. Even though it does not meet the standard of a randomized experiment, it goes further than the Manhattan Bail Project in measuring the effect of different variables. The study shows that a combination of weighted variables, including community ties, and also a defendant’s prior record, predict bail outcomes: The nine predictors are: (1) whether there were other charges pending against the defendant at the time of the arrest, (2) the number of prior misdemeanour arrests, (3) the number of prior felony arrests, (4) the number of prior failures to appear, (5) whether the defendant was unemployed at the time of the arrest, (6) the defendant’s residency status, (7) whether the defendant suffered from substance abuse problems, (8) the nature of the primary charge, and (9) whether the primary charge was a misdemeanour or a felony. (VanNostrand and Keebler 2009, p. 5)

After calculating the risk for each factor, the researchers employed a formula to group defendants into five risk levels (an algorithm). This identified significant differences between defendants who could be released and those who were less likely to appear in court and more likely to commit further offences while on bail: The average pretrial failure rate for all released defendants was 7 percent. … The average pretrial failure rate for defendants released pending trial ranged by risk level from 2.3 percent to 15.5 percent as follows: level 1 (2.3 percent), level 2 (6 percent), level 3 (9.2 percent), level 4 (11.8 percent), and level 5 (15.5 percent). (VanNostrand and Keebler 2009, p. 13)  For a review, see Betchel et al. (2017).

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This study also shows that the majority of defendants were “low risk” defendants, whose score placed them in levels 1 and 2. They did worse on pretrial programs than “medium risk” defendants (“high risk” defendants were imprisoned). This supports the conclusion, already attractive to progressives, that most defendants should simply be bailed. They should not be subject to onerous supervision or asked to attend rehabilitative programs.

Criticisms The quantitative approach employed by the Manhattan Bail Project has been criticized on a number of methodological grounds. One element that may seem problematic is that defendants were given quantitative scores on community ties. These were presented as objective measures, but in practice they relied on subjective judgement. Some reports suggest that arbitrary criteria were employed, such as whether the defendant had a working phone (Lazarsfeld 1974). Another problem, seen as fundamental by critics and also troubling to those managing programs (Mamalian 2011), is that the experiment was far from scientific in identifying predictive factors. The VERA researchers claimed to demonstrate, with no room for doubt, that community ties cause defendants to meet bail conditions. However, it is possible that the “follow up” response to those given bail may be the most important factor that influences outcomes. This is what those with technical expertise in social experiments call “contamination” or “suppression effect” (meaning that it becomes impossible to measure the independent effect of the original variables). These criticisms were made sharply by Malcolm Feeley in a review of innovative programs in criminal justice: At the time of this study, there has not been one scientifically acceptable evaluation of any major pretrial release program. Although enough reports have been written to fill a small library, few meet even elementary research standards. Many of these seemingly impressive data-based reports are little more than promotion pieces that ignore or beg the hard questions. (Feeley 1983, p. 48)

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In some respects, critics such as Feeley seemed too ready to dismiss the achievements of the pretrial services movement. Even if one were to discount the possible effect of community ties, the early programs demonstrated that even a small amount of supervision resulted in large numbers of defendants meeting bail. Today, pretrial programs are still offered in relatively few courts. This happens in a variety of ways, and sometimes alongside the cash bail system. Mostly, judicial officers are encouraged to use risk profiles as an actuarial guide. In some courts, decisions are made by computer programs that replace judicial decision-making, drawing on information collected by assessment officers (Livni 2017). The new risk analysis involves looking at a wider range of factors than community ties. Risk profiles are calculated through looking at a defendant’s previous record, bail history, as well as the seriousness of the substantive offence.

Is Judicial Discretion a Problem? The ultimate objective of reformers in the USA is to have a standard procedure for assessing risk (Mamalian 2011). Through applying the same criteria nationally, it is hoped finally to achieve consistency in decision-­ making. This suggests great optimism, a belief that scientific evidence will prevail, given that most courts still make bail decisions based on the ability to pay. It also invites discussion about how discretion operates in other countries. Discretion in Australia and the UK has often been presented as a problem, since ideally one would like defendants to obtain the same chance of obtaining bail in different courts. The outcome of applications in the Australian courts we observed may have resulted as much from the magistrates who heard the application as much as from objective factors such as the extent of a criminal record or strength of the prosecution case. This was particularly clear from observing twenty applications relating to domestic violence in one State in which the burden of proof had been reversed through amended legislation. The alleged offences all seemed similar, and in many cases the defendant had committed similar offences in the past. Nevertheless, half of the defendants received bail when the magistrate considered the risks and what conditions could be imposed to protect the victim. One could,

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however, argue that this misses the positive aspects of discretion that allow judicial officers to produce tailored orders responding to particular circumstances. In this section, we discuss this issue through contrasting a psychological study about bail decisions in the UK with a sociological approach to understanding some applications observed in Australian courts.

A Psychological Study There have been various attempts to describe discretion in bail applications using scientific methods. A common procedure is to identify potential variables, and then through statistical procedures identify which influence the decision to grant bail or remand in custody. Most studies by criminologists have been based on observational research in particular courts, and are often based on small sample sizes. They are not normally able to identify the weight of different factors in influencing the bail decision. It is worth reporting the findings of a larger study by psychologists (Dhami and Ayton 2001) that, while not without its flaws, is methodologically thoughtful in pursuing this research question. The study demonstrates the importance of discretion and asks difficult questions about how magistrates make decisions in limited time and with limited information. Dhami and Ayton (2001) designed their study to test two models of decision-making. The first assumed that decision-makers such as magistrates were influenced by a variety of factors that could be identified through conducting a regression analysis. The second assumed that magistrates, because they work under pressure, follow particular cues. In this second model, it is hypothesized that one factor will determine the result of a bail application and that magistrates will not properly consider other issues. The researchers were also interested in the consistency of decision-­ making by particular magistrates. Whereas other researchers have been interested in differences between magistrates, their study examined whether it was possible to predict decisions by magistrates based on their past decisions. The method employed was to recruit a representative sample of magistrates and ask them to review hypothetical applications:

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Two hundred and seventy booklets were distributed by mail to practicing magistrates sitting in a random sample of 51 courts in England and Wales. … The bail decision making task consisted of a set of 41 hypothetical cases on which the participants made a bail decision and then indicated their degree of confidence in their decision. In the present study, nine cues were manipulated (i.e. treated as the predictors in the models) and ten cues were held constant. (Dhami and Ayton 2001, p. 149)

The cues included the same factors employed by risk analysis researchers in the USA, such as previous record and strength of the prosecution case, but also characteristics of defendants such as gender and ethnicity.6 The magistrates were asked to perform two further tasks. They had to rank the factors in order of importance (with the aim of identifying their decision-making practices). They also were asked to state whether they were confident in the decision on a numerical scale. According to the researchers, the results demonstrated that magistrates make rushed, inconsistent decisions without considering all the available evidence with potential unfairness towards defendants. In what was admittedly a paper exercise performed at speed, different magistrates tended to be influenced by particular factors, without recognizing this when they described their practices. Dhami and Ayton also criticized regression analysis for assuming that a group of factors were important in determining bail decisions. They found that magistrates appeared to look for particular factors, and then make a quick decision without weighing up a number of considerations as required by bail legislation: The fast and frugal model does not search through all available information, does not weigh information in an optimal way, does not integrate all relevant information and bases its decision on only one cue. In this sense, although the fast and frugal model is descriptively valid, it lacks prescriptive utility, because magistrates behaving in a fast and frugal manner are not observing due process requirements as they are currently defined. The law on bail is silent regarding what information magistrates should use and how they should weight and integrate it. The due process model would  A weakness of this study is that it is based on giving magistrates hypothetical examples (Konecni and Ebbesen 1979). 6

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require that magistrates do not use defendant and crime control-related cues and they carefully search through all the available information and appropriately weight and then integrate the relevant information. This way of making a decision characterizes how compensatory models such as regression models portray the judgment process. However, we have already mentioned that human cognitive limitations and certain task characteristics may prevent individuals from using such judgment strategies. (Dhami and Ayton 2001, pp. 161–162)

To make matters worse, these researchers also found that magistrates expressed confidence in their own decisions. They concluded that magistrates should be asked to complete forms giving scores for the various factors when reaching decisions, although it is unclear how this would result in different outcomes for defendants.

Magistrates and Legislation In countries outside the USA, risk analysis is viewed as an inadequate and politically unacceptable alternative to decisions by judicial officers, an alternative that barely deserves consideration. There are, however, concerns both about discretion and about attempts to manage discretion through legislation. A long-standing complaint of progressives in Australia is that tough bail legislation is responsible for an increase in the remand rate. The crime lobby, that includes the police and right-wing newspaper columnists, disputes the connection. They argue that the problem is not that too many defendants are remanded, but rather the reverse. What is also interesting, and complicates these political debates, is whether the decisions made by magistrates are influenced by the legislation. It has been suggested that a recent recasting of the Victorian legislation, in response to the Bourke Street rampage, will result in more defendants being remanded (Gelb 2018, chapter 5). One response might be that the remand rate has steadily increased in the last ten years. This seems to indicate that other factors, such as a rise in crime or a change in police procedures, may have a greater effect on bail outcomes. In New

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South Wales, there have been numerous revisions of legislation.7 Don Weatherburn and Jackie Fitzgerald (2015), who conducted an analysis of decisions following the introduction of a new “show cause” test, found that the remand rate appeared to remain the same at least after three years. It is possible that such legislative changes do not result in tougher outcomes because magistrates exercise considerable discretion in applying the law. In Chap. 5, we discussed an application observed in New South Wales (application 3: the “fork” case). It illustrated how a magistrate interpreted a revised law in favour of the defendant. In this legislation, a defendant can be asked to “show cause” in certain circumstances. This reverses the burden of proof, and makes it difficult to obtain bail. Yet the magistrate quickly found that the police had “over-charged”. The defendant had “shown cause” and overcome the hurdle of the “unacceptable risk” test. The following application was heard by a different magistrate and resulted in the defendant being refused bail. However, in this case the magistrate accepted an argument by the defence lawyer that the prosecution was mistaken in claiming the show cause provision applied. Unusually, all parties had to consult the Bail Act during the hearing. Even though show cause did not apply, the magistrate still saw the defendant as presenting an unacceptable risk that could not be reduced by any bail conditions: Application 13 1. M: Right it’s a release application. Take a seat. I’ll read the papers. 2.

P:

Bail is opposed Your Honour.

[The defendant is a young man with arms crossed and his head bowed in front of the camera] 3.

M:

It is a release application. Bail is opposed.

4.

DL: It’s a show cause

5.

M:

Why? Is it the nature of the offence?

 For a review of legislative changes in Australia, see Bartels et al. (2018).

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6.

DL: Yes s [ ] 1b offence involving a firearm

7.

M:

161

Is there any dispute over that

8. DL: I can see it is the Firearms Act s163. It’s a firearm. I will read 9. it out for Your Honour’s benefit. “It involves the use of a firearm 10. —that’s not relevant” [ ] 11. P: 12.

Your Honour my submission is that these subsections are for groups of firearms and this is part of the groups in subsection d.

13. M:

What are you saying?

14. P: 15.

s3a Crimes Act 1900 and 1936 involves the use of a firearm, prohibited use of a pistol in a public place. A pistol.

16. M:

[reads] Are these indictable offences?

17. DL: 18. 19. 20. 21. 22. 23. 24. 25.

It is an indictable offence. If my friend’s relying on the definition in [ ] that clearly says involves use of a firearm. The words use and possession are different. In my submission s15b is clear [on use] in a public place. This is in a private place. It goes on and indicates that it often involves a military style weapon. So it requires a military style weapon and it is certainly not that. I think the legislation is very clear. It does not involve possession, must be in a public place and must be a military style weapon. That’s how I see the section your Honour.

26. P:

It does not say this in the groups subsection.

27. M: 28. 29.

In the groups section, it refers to [ ]. No, using and possession is distinct. It won’t be show cause. It’s just back to a release application.

30. P: 31. 32. 33. 34. 35.

Thank you Your Honour. I see the risk as failing to appear. The accused is charged with a number of serious firearms offences and a lengthy custodial sentence is likely. There is a strong prosecution case. The firearms were located on the premises under the bed. At the time of the incident there was a fire at the premises. The police attended and seized the firearm. ID

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36. 37. 38. 39.

documents were found in the room and a shell in the barrel of the firearm so it was ready to be used. When interviewed the accused made admissions to moving there two days previously. Your Honour there is strong evidence against the accused.

40. 41. 42. 43. 44. 45. 46.

My main concern is that serious offences would be committed on bail. s9(1) and there will be a lack of compliance with bail conditions. My third concern is that he will endanger the community. We would allege he has the knowledge and capability to acquire such firearms. Considering the nature of the evidence, there is clearly a danger to the community and no way to adequately protect using conditions.

47. M:

Thank you. Yes Mr. [ ]

48. DL: Your Honour The nature of the firearms doesn’t assist my client. 49 It’s a sawn off shot gun. 50. M:

There can be no innocent explanation.

51. D: 52. 53. 54. 55. 56. 57. 58. 59. 60.

I’m accepting that. However, we must consider the broader context. He moved into the premises three weeks ago and a fire broke out yesterday due to an electrical fault in the shop. He’s a drug user and was at hospital suffering with a heroin and ice addiction. He was living with the co-accused at the premises. What he tells me is that the firearm was there when he moved in. One of the previous tenants has been in and out of prison. [He was afraid to turn it in.] So in my submission there is a case to make on mitigating his possession such that the court would have many options.

61. M:

There is a breach of bond.

62. DL: 63. 64. 65. 66.

There was a failure to appear on 25 October. He was listed at the Downing centre. His record does not indicate a lack of compliance with court orders. He has a place to go with his family. It would be my submission that a residential condition would be acceptable and other conditions would mitigate

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67. 68.

concerns about further offending. It would appear clear that his drug lifestyle and any risk can be mitigated.

69. M: 70. 71. 72. 73. 74. 75. 76. 77.

Thank you The accused is Mr A. It is a firearms charge possessing a firearm under [ ]. On the release application, bail is opposed. The defence says he will appear and there is an acceptable risk. The Prosecution relies on the nature of the offence of possession of a firearm. They say it is an unacceptable risk of serious offences using a firearm and endangering the community. The Prosecution points out the seriousness of the firearms offence. There is a shortened shotgun and a lot of ammunition. I consider that gaol would be the likely penalty.

78. 79. 80. 81. 82. 83. 84. 85.

The Defence gives information on the circumstances in which he came into possession of the firearm. The circumstances are intriguing and the Defence argues the court would have options other than a full-time gaol sentence. I am not convinced that is the case. The defendant did not return the firearm. Given the serious nature of the offence, an unacceptable risk automatically arises. I don’t consider it can be adequately mitigated. 22nd June for plea. Let’s go to Brown.

In this application, the key issue was how the magistrate assessed the prosecution case, and the likelihood of a prison sentence (lines 75–77). He accepted the defence case that the firearm had been left in the property. He was not persuaded that the defendant was too frightened to contact the police. Although there is no way of knowing for certain, it is possible that another magistrate might have been more generous, or perhaps the court would have been presented with more information about the defendant and plans for treatment (lines 54–55). In any event, this application does not prove that the tougher bail law was needed. The show cause argument was rejected, and it seems likely that the magistrate would have approached the issues in the same way under the previous, supposedly more generous, legislation.

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Towards a Positive View of Discretion In contrast to Dhami and Ayton (2001), criminologists have often pursued a multi-methods approach in studying bail decisions. Our own approach in researching Australian courts has been to measure causal factors, as best we can, and also speak to practitioners where possible and describe in some detail how decisions are made. In our research, we found that there was an understandable reluctance to talk about the reasoning process in decisions aside from in general terms. But even a small amount of observational research can be helpful in identifying problems and omissions in quantitative studies. We found, for example, that legislation is not applied in a mechanical fashion but interpreted and at times debated by legal professionals. In addition, one part of bail legislation, possibly overlooked by those conducting factor analysis, gives magistrates the ability to set conditions that reduce the risks. You can see the magistrates considering possible conditions in each of these examples. We found that many magistrates used reporting conditions and curfews, as well as requiring sureties, as a means of giving second chances after breaches. This suggests that factor analysis may have limited value in explaining decision-making. In each application, magistrates weigh up the issues presented by the prosecution and defence. The interpretive judgements about the law, facts and circumstances of defendants cannot completely be modelled or described using quantitative indicators. Clearly, judicial officers decide applications differently. This does not mean that exercising discretion is always harmful, or that those making these decisions could easily be replaced by computer programs.

Comparing the Two Models This review of bail decision-making through risk analysis in some US courts, and through the exercise of judicial discretion in Australia, has necessarily been incomplete. The US secondary literature seems to have little interest in the institutional and political processes through which algorithms are developed or employed. Some critics have suggested that

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allocation of scores in relation to community ties must involve subjective judgement (Feeley 1983). This probably cannot be avoided in assessing other criteria, even the seriousness of a criminal record.8 By contrast, in the Australian research literature, there are few strictly quantitative studies. This is because the statistical information is not collected by courts and other agencies. We do not even know the extent to which an increase in the remand rate indicates a rise in imprisonment, or whether the increase results from more punitive decision-making when sentencing or increased delays in listing trials. Nevertheless, despite these difficulties, it is possible to make some comparative observations. In the conclusion to this chapter, we will focus on the potential in the two models for unfairness and political acceptability.

Potential for Unfairness Traditional courts might seem fair since they are based on individualized decision-making. This is what one can see when observing applications. Magistrates hear submissions from each side, weigh up the factors and legal considerations and reach a decision. In many courts, this decision can be reviewed by making a fresh application to the higher courts.9 Algorithms cannot possibly match the craft skills in making these situated decisions. The traditional model may, however, seem less fair when one learns that many magistrates refuse almost every application, while other magistrates allow any application. This may seem too subjective a process. By contrast, US courts that employ risk analysis have been criticized because this leads to unconscious bias against certain groups. It has been argued, for example, that decisions based on whether you have a working telephone (that may depend on where you live) are no fairer than granting bail for a cash payment. In any bail system, there is arguably potential for unfairness.  We have examples from bail applications that illustrate how criminal records are interpreted. Some magistrates are, for example, only interested in offences that are similar to the latest alleged offence. 9  We discovered that the right to make a fresh application differs between States. The Tasmanian government has recently proposed removing a right of appeal (Department of Justice 2018). This may be a response to a sudden increase in applications that has resulted in organizational difficulties, or simply part of an attempt to restrict bail. 8

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Political Acceptability What is perhaps a more interesting question, at least from a sociological perspective, is how different systems achieve and maintain legitimacy. In the USA, there has been a successful movement of bail reform (Baughman 2018). According to the literature, risk analysis has legitimacy because the public trusts scientific experts, and there is a lot of information published about bail outcomes that is scrutinized as part of the political process. Nevertheless, the vast majority of US courts do not employ risk analysis or decide applications through using algorithms. Although criticized by a wide political coalition, the bondsman or commercial cash bail system has maintained legitimacy.10 Similarly, in Australia there have been regular criticisms of courts. Right-wing commentators would like magistrates to be tougher in granting bail, especially following a number of recent tragic events, including the Lindt Café siege in Sydney and the Bourke Street rampage in Melbourne. Progressives, including many academic criminologists, would like greater leniency both in bail decisions and when sentencing for substantive offences (e.g., Brown 2013; McMahon 2019). Yet the traditional court has retained its legitimacy. There would be no support in Australia for replacing judicial officers by algorithms, even if this would save money and perhaps result in more consistent decisions.

External Constraints To what extent are bail decisions shaped or constrained by an external environment? This is an important question in relation to decision-­ making, be it either by algorithms or through the exercise of judicial discretion. There has been no research in the USA on the political and institutional context of pretrial programs. We do not have sufficient data to advance firm conclusions about external constraints on judicial work in Australia either. Nevertheless, we can make some suggestions from

 For an informative account of the bail bondsman system, see Bauer (2014).

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observing hearings and speaking to practitioners. These data suggest that judicial decisions are not completely determined by external constraints, although practitioners work within institutional structures. This can be illustrated through briefly considering the influence of legislation, political pressures and material resources.

L  egislation It is often assumed that tough bail laws must result in more applications being refused. This is difficult to demonstrate through employing quantitative methods, even in longitudinal research (Thorburn 2016). In our study, we found that half of applications in offences relating to domestic violence were accepted in Tasmania despite reversing the burden of proof. We also observed some applications in other States in which defendants overcame the “show cause” provisions and went on to satisfy the magistrate that the risk was “acceptable”. It seems likely that tough laws that turn the burden of proof against applicants, and especially those who reoffend on bail, have the effects intended by legislators. But it is still possible for magistrates to exercise discretion.

P  olitical Pressures It is also possible that magistrates are influenced by political pressures directed against them by the media and politicians. The effect of this influence on decision-making is hard to measure. Clearly, in some States bail was highly politicized. It is possible to see the influence of lobby groups on legislation,11 and media commentators also hope to influence judicial officers.

 One informant had attended consultations on bail legislation in New South Wales. At the meetings, senior police officers had argued vigorously for a tougher definition of “unacceptable risk” to protect the public. 11

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The Availability of Resources This is a more subtle influence on judicial conduct. If an agency is established that makes it easier for magistrates to put defendants on pretrial programs, this is likely to affect the remand rate.12 Clearly, there also needs to be a receptivity to such initiatives in the first place or a cultural change. Perhaps organizational change of this kind can be attributed to the exercise of individual discretion over time. Another way to understand change is that it can be engineered in a way that partially offsets the effects of punitive legislation.

Conclusion In a complex area such as bail reform, it is easy to lose sight of the main policy issue facing governments in different countries. In Australia, the remand rate has doubled over a ten-year period. The prison population is much smaller than in the USA, but the proportion of remand prisoners is higher.13 The main response has been to enact even tougher bail laws and to build new prisons.14 Given that this is neither affordable nor sustainable, it also seems worth thinking about initiatives that might reduce or contain the increase. The main focus of this chapter has been risk analysis. Some US courts have reduced their remand populations through employing actuarial guides based on measuring what is claimed to be the actual risk posed by bail applicants. But we would suggest the need for caution when introducing such scientific tools. There will be unintended consequences in constraining individualized judicial discretion.

 The development of the Court Integrated Services Program (CISP) in Victoria since 2007 may have influenced bail decisions through giving magistrates more options. It is, however, difficult to show this conclusively given that the remand rate has increased as the program has expanded. 13  See Walmsley (2017). 14  See, for example, the recent proposal to build a second prison in Tasmania (Department of Justice 2018). 12

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References Australian Bureau of Statistics 2018 Criminal Justice Statistics. ABS, Canberra. Bartels, L., Gelb, K., Spiranovic, C., Sarre, R. and Dodd, S. 2018 “Bail, risk and law reform: A review of bail legislation across Australia”. Criminal Law Journal. Vol. 42, No. 2, pp. 91–107. Bauer, S. 2014 “Inside the wild, shadowy, and highly lucrative bail Industry”. Mother Jones. May/June issue. https://www.motherjones.com/. Accessed 2 June 2018. Baughman, S. 2018 The Bail Book: A Comprehensive Look at Bail in America’s Criminal Justice System. Cambridge University Press, Cambridge. Becker, H. 1972 Outsiders. 2nd Edition. Free Press, New York. Betchel, K., Holsinger, A., Lownkamp, C. and Warren, M. 2017 “A meta-­ analytic review of pretrial research: Risk assessment, bond type, and interventions”. American Journal of Criminal Justice. Vol. 42, pp. 443–467. Brown, D. 2013 “Looking behind the increase in custodial remand populations”. International Journal for Crime, Justice and Social Democracy. Vol. 2, No. 2, pp. 80–99. Day, A. 2018 Bail Decision-Making as an Exercise in Risk Management. Paper for CRC Project. Department of Justice (Tasmania) 2018 Reforms to the Tasmanian Bail System: Position Paper. Tasmanian Government, Hobart. Dhami, M. and Ayton, P. 2001 “Bailing and jailing the fast and frugal way”. Journal of Behavioural Decision-Making. Vol. 14, No. 2, pp. 141–168. Feeley, M. 1983 Court Reform on Trial: Why Simple Solutions Fail. Russell Sage Foundation, New York. Gelb, K. 2018 “Despite our fears, we should be wary of harsher bail laws”. The Age, 25 February. https://www.theage.com.au/national/victoria/despite-ourfears-we-should-be-wary-of-harsher-bail-laws-20180222-p4z1al.html. Accessed October 2018. Hinton, M. 2019 “A bail review”. Adelaide Law Review. Vol. 40, No. 1, pp. 187–204. James, N. 2018 Risk and Needs Assessment in the Federal Prison System. Congressional Research Service, Washington DC. Konecni, V. and Ebbesen, E. 1979 External validity of research in legal psychology. Law and Human Behavior. Vol. 3, No. 1/2, pp. 39–70.

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Lazarsfeld, P. 1974 An Evaluation of the Pretrial Services Agency of the VERA Institute of Justice. VERA Institute, New York. Livni, E. 2017 “In the US, some criminal court judges now use algorithms to guide decisions on bail”. Quartz Media. https://qz.com/920196/criminalcourt-judges-in-new-jersey-now-use-algorithms-to-guide-decisions-on-bail/. Accessed 2 June 2018. Mamalian, C. 2011 State of the Science of Pretrial Risk Assessment. Pretrial Justice Institute, Rockville, Maryland. McMahon, M. 2019 No Bail, More Jail? Breaking the Nexus between Community Protection and Escalating Pre-Trial Detention. Department of Parliamentary Services, Parliament of Victoria, Melbourne. Monahan, J. and Steadman, J. (eds.) 1994. Violence and Mental Disorder: Developments in Risk Assessment. University of Chicago Press, Chicago. Nolan, J. 2011 Legal Accents, Legal Borrowing: The International Problem-Solving Court Movement. Princeton UP, Princeton. O’Malley, N. 2010 “Firm that does dirty work for the government on the cheap”. Sydney Morning Herald, 25 September. https://www.smh.com.au/ national/nsw/firm-that-does-the-dirty-work-for-government-on-the-cheap20100924-15ql1.html. Accessed October 2018. Productivity Commission 2015 Report on Government Services 2015. Productivity Commission, Melbourne. Reisig, M., Bales, W., Hay, C. and Wang, X. 2007 “The effect of racial inequality on black male recidivism”. Justice Quarterly. Vol. 24, No. 3, pp. 408–434. Sturz, H. 1963. “The Manhattan Bail Project: An Interim Report on the Use of Pre-Trial Parole”. New York University Law Review. Vol. 38, pp. 67–95. Thorburn, H. 2016 “A follow up on the impact of the Bail Act 2013 (NSW)”. Bureau Brief No.116. NSW Bureau of Crime Statistics and Research, Sydney. VanNostrand, M. and Keebler, G. 2009 “Pretrial risk assessment in the Federal Court”. Federal Probation. Vol. 73, No. 3, pp. 3–28. Walmsley, R. 2017 World Prison Population List. Institute for Criminal Policy Research, London. Ward, T. and Maruna, S. 2006 Rehabilitation. Routledge, London. Weatherburn, D. and Fitzgerald, J. 2015 “The impact of the NSW Bail Act (2013) on trends in bail and remand in New South Wales”. Issue paper no. 106. NSW Bureau of Crime Statistics and Research, Sydney.

8 Pretrial Services

We are of the view that the most promising initiative that could reduce the numbers remanded in custody is to offer pretrial services to defendants with vulnerabilities. This chapter will provide an overview of how pretrial services are understood and delivered in criminal courts. It starts by summarizing a study that describes in some detail how services were delivered by privatized agencies in a court in California (Castellano 2011). It then looks at different models in providing services in Australia, focusing on the MERIT program in New South Wales and the CISP in Victoria. The second part of the chapter gives a taste of the work involved in service delivery, drawing on interviews with case workers and clinicians. The chapter concludes through considering questions about effectiveness and the potential for punitiveness and coercion in welfare programs.

An Outsourced Program There have so far been almost no qualitative studies about bail decision-­ making or pretrial services internationally. An exception is an ethnography by Ursula Castellano (2011) who worked in four pretrial programs, © The Author(s) 2020 M. Travers et al., Rethinking Bail, https://doi.org/10.1007/978-3-030-44881-3_8

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pseudonymously called “Reach, Second Change, Pathways and Open Door” in the San Miguel County criminal courts in California. This court may offer a model to the entire State that has recently proposed ending commercial bail and replacing this with pretrial services (Wilson 2018). The study provides an insight into how criminal courts could develop internationally that might concern those committed to the current system. The four pretrial agencies in this US court were established with different missions and separate funding from public and private sources (Castellano 2011, pp.  24–28). The Reach provided “twenty-four hour pretrial release services to new felony arrestees … [who] had not yet been formally charged with a crime”. The defendants assisted by Second Chance “were most commonly facing charges for suspended license, burglary, theft, drug possession, prostitution, assault, and vandalism”. Castellano reports that “caseworkers recommended releases to bail commissioners in chambers and an average of ninety percent of petitioners were granted release”. The Pathways program worked with “homeless misdemeanants facing low level charges and short jail terms”. By contrast, Open Door was “an intensive, supervised pretrial release program for felony defendants charged with serious offenses”. There was a different culture to the other programs, similar to those described in studies of some drug courts (e.g., Burns and Peyrot 2003). Clients were required to follow “strict program rules, such as checking in regularly, participating in prescribed rehabilitative programming, and passing random drug tests”. Together these not-for-profit agencies adopted 60% of defendants, offering supervised programs and support. The agencies made the decisions about bail in this court. Castellano describes how pretrial officers sat beside judges in courtrooms. They even collected and returned defendants to the cells, illustrating a blurred boundary between welfare and punishment. Castellano also reports, contrary to what one might expect, that the agencies did not employ risk analysis to make their work accountable, and practitioners did not employ risk analysis in making decisions about defendants. Instead, they attempted to allocate places in programs to defendants who might benefit. In doing so, they employed their own moral criteria:

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Suitability criteria [were more] subjective because decisions were influenced by staffers’ moral compasses not procedural law. Caseworkers listened to defendants’ stories and assessed their program amenability according to certain types of troubles. For example, defendants with more sympathetic stories, such as the homeless, were evaluated differently than persons judged to be lazy and dangerous. … As an important consequence, some defendants were labeled as more entitled to release than others. (Castellano 2011, pp. 44–45)

Although the program staff made moral choices, there was sufficient funding to divert most defendants. There was no requirement to measure effectiveness, but instead pressure to take on as many cases as possible. Although it is not entirely clear from the study, it appears that there were great problems of prison over-crowding. In these circumstances, the supervision of defendants in the community made a great deal of sense.

Pretrial Services in Australia There are a variety of models internationally for providing pretrial services. In the late 1990s, it appeared that the Probation Service in the UK would offer, and expand, services nationally (Drakeford et al. 2001; personal communication). This did not happen, however, due to a restructuring and contraction of this government agency. In Australia, the Commonwealth Government has not taken a lead. In most States, pretrial services are offered on an ad hoc basis by a number of agencies loosely connected with the courts, each seeking funding from public and private sources. The only exceptions so far have been the Magistrates Early Referral into Treatment (MERIT) program in New South Wales and the Court Integrated Services Program (CISP) in Victoria. The courts in these States do not directly provide or even monitor and assess services. However, each agency provides access to a wide range of services, supported by a funding agreement from the State government. There are also separate Forensic Mental Health Services that assist defendants remanded in custody with mental health problems (Hanley and Ross 2018).

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Ad Hoc Services A defence lawyer, representing a client, can seek to strengthen a bail application in a variety of ways. In the case of a breach of bail, it might, for example, assist if the defendant supplied a surety. If there is a drug or mental health problem, one option is to consult a private practitioner for clinical assessment prior to hearing, and then for further treatment. The defendant might then undertake to undergo a course of treatment and provide progress reports to the court. This, however, rarely happens. Obtaining such services is expensive. In addition, defence lawyers respect the wishes of clients who do not see taking drugs as a problem or acknowledge that they might have a mental health problem. This also explains why only a few defendants choose to be diverted to a specialist court, even if they might consider pleading guilty. We found, when observing bail applications in Tasmania, South Australia and New South Wales, that magistrates did not refer defendants to services, unless defendants were attending a specialized problem-­ solving or therapeutic court (like a mental health or drug court). Instead, they relied on defence lawyers to make these proposals, and would then incorporate suggestions in orders. In some cases, there was direct contact between the magistrate and the service provider. An example from Tasmania is the Bridge Centre for drug and alcohol treatment run by the Salvation Army. A chaplain is normally somewhere in court, and can phone the Centre to check if a place was available. The magistrate would raise this possibility when it seemed appropriate, even if the defence lawyer had not requested admission. In South Australia, the court would refer homeless defendants for an assessment either for home detention or for obtaining a place in a new bail hostel.

MERIT (New South Wales) In the court researched by Castellano, defendants were allocated to programs run by not-for-profit agencies that provided services such as drug treatment. The longest running pretrial services program in Australia are MERIT in New South Wales and CISP in Victoria. There are significant

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differences in how the agencies make assessments and offer services. MERIT has been a successful initiative that has become part of business as usual in criminal courts in this state. But this is because the services are aimed at defendants who have already obtained bail and do not challenge or disrupt decision-making by the court workgroup. MERIT is a service offered by the Department of Health to criminal courts in New South Wales. Defendants can be referred for an assessment in a few ways. In some cases, a referral is made after a successful bail application. There is a short tick-box assessment for eligibility, a further in-depth assessment, and then the defendant participates in a twelve-­ week program, reviewed at the half-way point. In other cases, an assessment is made for eligibility before the bail decision. We were told that, in some cases, this strengthens the bail application: Merit is predominantly for drug addictions. It isn’t, or shouldn’t, really be related to bail because you have to be on bail to participate in MERIT.  However, some magistrates do, and some MERIT officers do, assess people for MERIT in the cells and they will sometimes use that report in trying to help the person get bail. But that is the minority and it shouldn’t really happen like that, but some courts do that.

According to this interviewee, there was a practical reason not to assist defendants by preparing a report before the decision: Q: Wouldn’t an assessment strengthen the application? A: Absolutely. But you see, if the defendants don’t get bail, the MERIT person has wasted all this time assessing them. So the assessment 95%-plus of the time is done for people who are already on bail. It was recognized that a good report from MERIT will strengthen a plea of mitigation after a finding of guilt. However, care was taken to ensure that withdrawal had no effect on sentencing: A: It’s actually not technically court ordered. They’re recommended for the program. They are able to withdraw if they commence and they go, “You know what, it’s not for me”.

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We just let the courts know that they voluntarily withdraw. There is a part of it where if they state that they want to participate in the program, however they don’t show up for appointments, then we actually have to do a non-­compliance report. That’s the punitive part of it. But the MERIT program is structured in a way where the courts are not allowed to take punitive action against our clients just on the basis of not engaging in treatment.

CISP (Victoria) CISP is an agency that was established in 2009 by the Department of Justice (now the Department of Community Safety) in Victoria. Although this is not entirely clear from its public face on websites, the aim is not simply to help people with problems, but to reduce the remand population. Defendants are referred by lawyers or magistrates. We were told that some magistrates had become CISP enthusiasts. Plans are prepared as part of bail applications, with the aim of keeping defendants out of custody. There is a four-month program. The agency brokered services from a variety of agencies. Eligible defendants were allocated to case workers who did not provide services themselves but arranged and oversaw a package aimed at addressing the needs of each defendant. In our study, we were not able to observe this work in any detail. However, through conducting a focus group with case managers, it was possible to appreciate the organizational structure through which services were obtained or allocated: Manager: For drug and alcohol, we’re part of quite a complex whole of government arrangement where we contribute funding to get access to drug and alcohol services. But in other areas we don’t ourselves have an arrangement. The State government may fund things but what we do have, which we can use sometimes, is we can buy something. So, we have brokerage. If we can’t find a solution, we can try and buy it.

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Is there a perception that people who are not in the criminal justice system are competing against you for resources that you’ve got access to? Yes and no. Because the people we work with aren’t criminals who are separate from the people who will be using those services in the community. They are the same people. Addictions, mental health issues, cognitive impairment end up in the criminal justice system and they come to our attention. So, it’s not as though there’s a group of people who are criminals who get a service, and then a group of other people who get a service. It’s actually the same batch of people.

We were also able to get some sense of the specialized character of the services available through many agencies: Q:

Is the treatment individualised and you’ve got a wide range of options? Or is it a one size fits all? CW1: I guess it depends on the outcome. Because we would refer clients to a drug and alcohol clinician for initial assessments, and the client and the clinician will work together to put together a bit of a treatment plan in terms of their drug and alcohol specific support. So, we liaise with the clinician and the clients and so we’re pretty open with them. But ultimately, it’s between the clients and the clinician. Manager: And as a general rule, this is where the role of the case manager comes in. They do an assessment and figure out what that person needs in terms of what range of services. And then which service is the best fit in terms of geography and personality and gender and all of those sorts of things. So, this is really the role of the case manager to say, “Okay I have someone from—a Horn of Africa refugee who’s living in this area with this problem. Therefore this service will be the right service provider service” and do the linkage. So, it’s individualised in that way. And then good services that we send people to will then individualise even further. So, the drug and alcohol will do an assessment saying, “This person

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needs a sequence of some initial counselling on withdrawal, and then some more counselling, and then possibly a residential rehab”, and they will then line all that up. So, there are a couple of layers where it is individualised. CW2: And that’s where our assessments come in. Because we formulate a treatment plan during the assessment and then that report is provided to the court. And that’s what we use as a reference throughout our case management to coordinate those services for our clients. Q: So, as a case manager, you need to know what’s on offer and what the providers do. But you’re not actually doing the treatment. You’re CW2: More of a referral service I suppose. More case coordination. CW3: Case coordination. Q: I think people from the general public will be interested to learn about the variety of these services. In some States, there are fewer services on offer. Manager: Yes. And I think the thing about Victoria is we have a fairly sophisticated service system, but it actually requires some service system navigation. I’m not saying in every area for every need there’s a service, there’s some significant gaps that we wrestle with. But in many cases, there is a service. The individual member of the public or the participant isn’t going to find that service easily. So, it’s our job to know it’s there and do that linkage. The Court Integrated Services Program is unusual in Australia in drawing on a large system of specialized services in a partnership agreement with a State government. Allocating case workers to defendants is possible, and necessary, because there are many services. The case worker develops an expertise in finding suitable programs offered perhaps by twenty to thirty agencies, some of which contract out work to smaller organizations. This system would not work in smaller States in which there are only a few agencies offering a limited range of services.

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Nevertheless, it might be possible to introduce elements of this system even in a smaller State.1

Forensic Mental Health Services are provided in criminal courts independently of these programs. Forensic Mental Health Officers, known in some States as Court Liaison Officers or Justice Nurses, are funded by Departments of Health. They serve the court in a variety of ways, for example, in advising on defendants who are not mentally fit for trial. They can make recommendations to move people from prisons to hospitals. They screen applicants for mental health courts. In some States, they provide medical treatment to defendants in police stations and in prisons. This service does not provide pretrial services, but makes recommendations to magistrates on whether defendants require treatment and referrals. There could be a condition on a bail order to attend a mental health office for an assessment.

The Delivery of Services It is hard to give much detail on how services are delivered without spending more time with practitioners and clients in different agencies. There have so far been no empirical studies of this kind. Through having interviewed case managers and some clinicians, it is however possible to obtain some information about professional knowledge and practical work in some fields.

Drug Treatment Drug courts have received much attention in recent years in offering an effective means of addressing addiction for defendants who plead guilty  Allocation of a case worker to defendants who reports back to magistrates already happens in children’s courts and diversion lists (Richards and Renshaw 2013). Some courts have already established informal committees with representatives from agencies, with the aim of developing pretrial services. 1

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(e.g., Indemaur and Roberts 2003; Law Reform Commission of Western Australia 2009). These specialist courts direct considerable resources at a small group who are willing to undergo an intensive program with the objective of achieving personal change. Most defendants, however, initially plead not guilty. Are there programs that make it easier to obtain bail through addressing drug addiction? The short answer is that such services are not offered in Tasmania, or South Australia, although defendants can offer to see counsellors or attend programs that might strengthen bail applications. In New South Wales, drug and alcohol treatment is available through the MERIT program but only to defendants who have obtained bail (Passey et al. 2007). The program does not necessarily reduce the remand rate, although it is possible that a willingness to be assessed may persuade the magistrate to grant bail. Progress on the program may be considered by the magistrate when sentencing. In Victoria, defendants can apply to CISP for an assessment. The plan, that may include drug treatment, will normally persuade a magistrate to grant bail. Drug programs are designed for those with different types of addiction. There are, for example, specialist programs that seek to achieve withdrawal from particular drugs, and a choice of screening programs (an expensive means of keeping clean but one favoured by magistrates). There are also debates over what works and trials of new programs. Case workers had a pragmatic and realistic approach. The aim was not to cure an addiction but to reduce offending: Manager: The classic one for us is heroin. Someone using heroin usually has to perform some sort of crime to sustain that habit. If we start someone on methadone, so they’re on pharmacotherapy, the golden leash, they’ve actually got to get to the pharmacy each day. They might still use a bit on top of that but day-to-day they can live without having to commit a crime. Every now and again they might just say, “I really want to get back on”. And they’ll go and pinch something from someone’s car and buy some heroin and then they might have a few more days. But you’ve gone from daily theft down to every now and again. That is a saving for everyone.

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Q:

And you are putting people on methadone in your programs? CW 1: If they request it yes. Manager: The evidence in the opioid addiction world is that substitute, pharmacotherapies are effective. There’s a whole ideological debate but for our guys it’s [working]. It’s a voluntary thing because they’ve got to commit to going to the pharmacy each day and doing their pickups. We’re not far off having an injectable form, a monthly injection, which will be a game changer. Just waiting on federal approvals.

Housing For some applicants, having stable housing was a condition for obtaining bail. We found that this was not always the case for those who were living on the streets, despite the fact there was no postal address.2 It was often stated as a reason for refusing bail by those with transient lifestyles. These defendants often had a drug habit. They were difficult to contact, but also were viewed as likely to reoffend without supervision. One way to meet bail was to find a place in a bail hostel. These varied in suitability. For example, in Hobart, Tasmania, the police sent defendants who were homeless to Bethlehem House, a facility run by a religious charity. There were various problems. First, it was an old building, and not a pleasant place to live. Second, there were strict non-alcohol and drug rules. This led to defendants or ex-prisoners being ejected. Third, housing was only available for a temporary period, so it was only suitable for orders with a short return date at court. The Salvation Army had been trying to obtain funding for a smaller hostel in one of their houses (Tasmania Corrections Think Tank 2011). This would only be able to  It was not, in fact, clear whether courts sent a written reminder. One magistrate asked defendants to “put a note on their fridge” of the next hearing date. It sounds like the key issue is not having a home, but whether the defendant would remember to attend after being told in court. Having a stable address made it easier for police to contact them and was also necessary for a curfew order that reduced the risk of further offending. 2

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house a few defendants, so there were questions as to whether it would provide value for money. In South Australia, there is a bail hostel in Port Adelaide with forty places. This is a modern block of flats. The objective in the planning was to house most defendants for short periods and to find longer term housing through social services. We heard from the court that there were difficulties with some defendants who were expelled for drug-taking. The main problem was that there were too few places to keep up with demand. This was because the remand prison was over-crowded. The court had originally wanted to send defendants who had committed minor offences, but the hostel was now used almost exclusively to assist those charged with serious offences who had already spent a year or more in the remand prison. It was recognized that each free bed could be used to reduce the remand population. It was considerably cheaper to house a defendant in a hostel than in prison. In Victoria, the needs of defendants were assessed holistically. There were a variety of hostels available, and some offered drug and alcohol services on the premises.3 Interestingly, when we met practitioners from the CISP, there was a debate taking place about the value of providing housing: Q: CW 1:

Q:

Do you think it would make a difference if you were able to give everyone really nice housing? No, I think the jury’s out for that. So, in the States they’ve got the housing first model, in some urban areas, which is you give someone a house and then once they’re stabilised, they actually deal with their other needs. The evidence around that is a bit mixed. We’ve got some research from our own housing program that suggests that putting someone in a house doesn’t actually improve their offending. Doesn’t change it?

 In the hostel in South Australia, officers from Community Corrections visited defendants on deferral orders once a week. It sounds like living in a hostel makes it easier to have regular contact or, to put this differently, exercise greater control and surveillance than asking defendants to travel for supervision meetings. 3

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Doesn’t change it. That’s not research that we can put out into the public domain because it’s [sensitive] Are there hostels that also deliver services? I worked at Flagstaff crisis accommodation where they had 64 males onsite. And then we had not only a crisis team who managed 12 to 15 of those residents but also we had ongoing outreach programs as well. So, there were direct linkages between the programs and [the housing]. So that’s an argument the housing does help in delivering the services. In some, but there’s only a couple of hundred of those beds in the State serviced for the criminal justice system. But I actually think the housing issue is one that, as a system, we’re struggling with. And we’re actually trying to do some work on this. Because Corrections have also got the problem around people finishing prison or going to CCOs [Community Corrections Orders]. So there’s a systemic criminal justice housing issue that’s a subset of a much broader homelessness issue in this State. So, we’re looking at doing some fairly high level work within government, across government departments, because it’s a major issue. And we don’t quite know what the solutions are. Do we need more Flagstaffs, or do we need something else? And we’ve got to wrestle with what is the right model.

This extract from a focus group gives a sense of how Victoria differs considerably from other States in delivering pretrial services.4 The provision of a couple of hundred beds is much greater than in smaller States. There are concerns whether this can address a much greater need as CISP and other programs expand. More fundamentally, there is an international debate on whether the provision of housing is effective in reducing crime.

 CISP has not made public evaluations of its performance or objectives since Ross (2009). In 2015–2016, the agency referred 715 defendants to some type of housing services (Coghlan 2017). 4

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Cognitive Impairment and Brain Injury The third main service provided is aimed at a range of problems caused by inherited conditions or those acquired in brain injuries. Again, our objective in this chapter is only to demonstrate that these are complex, specialist fields. It might be assumed that, if someone has a brain injury, then nothing can be done. However, this is not how case workers understand the issues: Q: CW 1:

CW 2: Q: CW 2:

I suppose some might say “It’s just a hopeless case nothing can be done”, but you have a more positive outlook. It’s a matter then finding out why they’re doing what they’re doing. One of the unique features about our program probably is we actually have a procurement arrangement whereby we have ready access to neuro psychology assessors. Some of the best neuro psychologists around I think do some work for us because they like the complexity of the clients we give them. So, we can get the neuro psych assessment done and we can usually find out what it is that is going on. Even with an ABI, people are functioning at some level so it’s a matter of working out what the strengths and the weaknesses are. And then you can work out some plan that will actually work with their strengths. And some of it is some people do need to be in a supported accommodation arrangement, so we do that. But in all brain injuries there’s different degrees. So, it’s not as easy as just speaking to someone and saying, “That person’s got a brain injury”. There’s more than one condition is what you’re saying. That’s right. And having that confirmed diagnosis as well opens up doors to other services and other resources.

The CISP is unusual in having access to high quality resources. Interestingly, the practitioners saw the objective as improving the client’s

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well-being rather than reducing crime, even though they were employed by a criminal justice agency.

Addressing Social Needs Those providing pretrial services do not see particular problems in isolation. MERIT clinicians pursued what was described as a holistic model of treatment, or the “psycho-social model”: A: We go through a whole range of questions for mental health, physical health, psychological, social. It’s a very holistic assessment. A lot of our clients may need assistance with housing, Centrelink, they may need assistance getting a bank account. They might not have any ID, so we can help with that. We can assist them to get into residential rehabilitation or inpatient detoxification. There are a few services, rehabs that have MERIT funded beds which means that they hold those beds aside specifically for people on the MERIT program. Q1:  How does not having a bank account affect either your drug problem or whether you’re going to commit offences? A: Well, we know that drug use is not in isolation. It’s caused by psycho-­stressors. So, we can assist somebody who can’t get Centrelink payments because they don’t have a bank account. We get some ID which means that they can then go to a bank and open an account. They can finally get paid. The “tough love” approach to addiction employed in drug courts has received most attention from criminologists. In these pretrial programs, there seems less emphasis on drug-testing and penalties and more on the services that might be provided by a social worker.

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Therapeutic Jurisprudence and Pretrial Services The delivery of pretrial services does not require employing techniques of judicial monitoring that one finds in some specialist courts. It is possible, for example, for a magistrate in Victoria to grant a defendant bail with conditions to complete a four-month program offered by CISP without meeting the defendant until completion of the program. However, magistrates in this court who support CISP have the opportunity to conduct judicial monitoring if they believe this would assist in rehabilitation.5 During our fieldwork in Melbourne, we observed two magistrates who employed techniques associated with therapeutic jurisprudence. Interestingly, we observed most examples of judicial monitoring employed in relation to sentencing defendants who were in breach of Community Corrections orders. These magistrates apparently viewed CISP as more successful in rehabilitating such offenders than those offered by Community Corrections.6 Judicial monitoring was seen as enhancing the value of undergoing drug treatment, even though this was not required when granting bail with these conditions. Here are two examples: Application 14 A female defendant in Victoria had breached bail owing to a continuing drug habit. The magistrate asked for a CISP assessment. 1. M: If you can be assessed, I want proof you’re not using drugs. In 2. order for me to release you from prison and put you on a court 3. order you have to show you are not as dreadful as last time. 4. You can come back to me. You can do a therapeutic court order. 5. But if you mess up, I’ll say well you haven’t done enough time. 6. I’m available next week.  On one occasion, we were told about what seemed to be a “rationing” system for magistrates. They were allowed to send a number of defendants for a CISP assessment each month. This suggests that there was greater demand than resources. It appeared from observing hearings that there was a waiting list of a few weeks for assessments at that time, although magistrates could request to fast-track defendants. 6  It is difficult to comment given our limited access. One possible explanation is that defendants knew this was a final chance before receiving a custodial sentence. Or perhaps judicial monitoring was only available for defendants on the CISP. 5

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Well, let’s check with CISP. Miss H we’ll need to negotiate with CISP. The first time I can see you is a week on Monday. I’m prepared then to grant you bail and see you every month. If CISP aren’t happy with you then I’m not. You’ve got to make a decision if you want to be on drugs the rest of your life. It’s up to you.

Application 15 1. M: Sit down Oliver. I’m going to give you a chance to do the 2. Corrections order. [ ]. If you do well, you won’t need to worry 3. about new offences. If you don’t do well, I’ll deal with you for a 4. breach of the Corrections order and all the other offences. 91 5. days would not be enough. 6. 7. 8. 9.

You are to be regularly tested. I don’t want to see you missing a drug test. Your only excuse is if you are in an emergency ward in hospital. There will be judicial monitoring. If there is a positive test, I’ll know and will breach you. It’s your choice.

[Asks where the defendant is living] 10. 11. 12. 13. 14. 15. 16.

Well let’s hope this goes better than last time. [To CISP case worker] Can you make sure he’s drug tested? I’ll see you 23rd May. You can be back in gaol if you don’t play your cards right. I get a full report. I can see the drug test results. So I’m expecting a B on that report. If you were at school you know what that means. You will lose your licence for 6 months. OK are you happy with that?

17. D: I am. 18. M: OK [repeats the warning]. There you go. I’ve given you bail. 19. I’ll see you on the 23rd May. Good luck. It was clear from preceding applications that this magistrate had experienced good results through sending defendants with drug problems to programs offered through CISP. It also appears that many defendants do not comply with Community Corrections orders. This may be because there is more emphasis on the CISP in assessing individual needs, and

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greater resources to support supervision. The thinking in this court seems to be that defendants should receive second chances, even after being sentenced, before sent to prison.7 This transcript also illustrates how judicial monitoring works. The magistrate talks directly to the defendant and uses his first name. He uses colloquial language (“You can be back in gaol if you don’t play your cards right”). There are a few jokes. The other distinctive feature is that, in a similar way to drug courts, the magistrate will monitor progress in monthly meetings, with the threat of sending the defendant back to prison. There are realistic goals in that the defendant is asked to achieve a “B grade”. The defendant has a choice whether to comply with drug testing or go back to gaol before being sentenced.

Some Criticisms Pretrial services have some similarities to specialist courts in seeking to reduce imprisonment through addressing the social and psychological causes of crime. There is already a large positive, but also a critical, literature on drug courts, and similar arguments can be applied to pretrial services. These relate to claims about effectiveness and concerns about punitiveness and coercion.

Effectiveness There is less hype about pretrial services than therapeutic courts.8 Nevertheless, there is an understandable tendency for those offering programs, or advocates for expansion, to exaggerate their achievements in order to attract further government funding or simply because the initial results seem exciting. Some caution is, however, advisable when one considers the limited extent to which these initiatives have been introduced  The defendant may have already spent ninety-one days in prison before this application (line 4).  Perhaps it is being too critical to describe positive reports as “hype”. Yet many evaluations seem selective and uncritical in collecting evidence. For criticism of methodological standards in this applied field, see Feeley (1983). 7 8

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internationally. Even in the USA, it has been estimated that before the proposals to end commercial bail in California (Wilson 2018), pretrial programs were only offered in 10% of courts. In Australia, integrated services have only been offered in Victoria in a few courts since 2009. These assist perhaps 14% of defendants in that State. In smaller States, such as Tasmania, limited services are provided, and they cannot keep up with need. The example supplied in Chap. 5 of a defendant pleading to be released from a high-security prison to obtain treatment (application 6) may be typical of what happens in many States across Australia. Certainly, the magistrate viewed the experience of this defendant as normal, given that there were no resources to reduce the waiting list, and the court had no responsibility to provide services. Where integrated services are offered, one question that might be asked is whether they actually work in reducing crime. Interestingly, there is limited public information about this. In the USA, VanNostrand and Keebler (2009) provide details about drop-out rates for different risk categories of defendants. However, there appear to be no reports about the success rates in different programs. A possible explanation is that, inside such professional groups, attempts to quantify results are seen as naïve. Defendants are understood as undertaking personal journeys, possibly involving many attempts: It might be that the first time they work with us they don’t want to address a certain issue. Or they address it in one way that’s not as effective. They come back a second time, say for example, with AOD [alcohol and other drugs] they might just agree to do some counselling. And then they come back a second time and they think, “I want to look at something different”. We’ve worked with clients who have gone into detox, lasted two days, come back again and worked with us. And actually, gone through and completed residential withdrawal and gone onto residential rehabilitation, but it’s incremental for them. (Caseworker) So, there have been people who have come—I think the most I’ve seen is eight times. And that’s fine because we understand that if they may not be ready this time, but it may not necessarily mean the next time they come in they’re not ready. We plant the seed for change and hopefully it takes hold at some time in their life. (Clinician)

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Committing fewer or less serious offences is seen as an achievement. More fundamentally, the objective within these programs is not to reduce crime, but to address social needs. There was also realism over what could be achieved with some clients: They come and see us once a week for an hour. They still have to go home to their environment and they have to go home and sit with the trauma that they’ve gone through in their life. Do they have a mental health condition that is not being addressed? So, all these things—sometimes people, especially the ones with quite complex mental health, it’s the old [question]: does drug use cause mental health or does mental health cause drug use? That whole interaction. Sometimes, you actually have to say, ‘This person will never be better than what they are now.’

Fairness There is a growing critical literature about therapeutic jurisprudence that raises concerns about fairness (e.g., Meekins 2006; Hannah-Moffat and Maurutto 2013; Donoghue 2014). Some contributions by criminologists have political objections about net-widening. Their argument is that most defendants who are diverted to therapeutic programs have committed minor offences, and might previously have been given bail or not charged in the first place.9 Legal commentators have also objected on the grounds that defendants are innocent until proved guilty and that the penalty should be proportionate to the offence. They point out that the level of supervision in drug courts is often considerable for defendants who might eventually receive a non-custodial sentence. The same arguments apply to pretrial services. The empirical issue that has yet to be fully explored is whether defendants are pressured or coerced to participate in these programs. Practitioners in our focus group did not seem to view this as a problem. However, they recognized that there might be some pressure:  It is difficult to support this political argument with statistical evidence. One interpretive issue is whether minor offenders are given fewer chances today by the police or whether there are more offenders committing repeat minor offences than previously. 9

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CW4:

There’s a window of opportunity that we’re trying to exploit and yes, it’s voluntary, but we’re putting the choices before the person. We’re laying them out and we’re making it easier for them to get to those things. For the person who’s not sure we have a technique in motivational interviewing but it’s a way of Manager: Talking to someone and a way that actually leads them to realise, “Oh that would be a good idea if I address that particular issue”. Try and lead them to make that conclusion for themselves, because that’s more robust than someone else telling you, “You’ve got a problem go and sort it”. So, there’s a number of nuances in all of that. And the other thing we’ve got—at the blunt level it’s stick and carrot. They’re on bail, at any moment they can go back into custody until their ­matter is finalised. If they go in this program that’s something a lawyer can use to say, “Well a CCO rather than prison, Your Honour”. A critic might view this as coercion, whereas the welfare practitioner would see the client making an informed decision after hearing about the options. In addition, information was not provided to the court without consent. In some cases, defendants instructed agencies not to disclose sensitive information: A:

Q: A:

Lawyers also have to take instructions from their client. If the lawyer says, “I don’t think you’re very well” and the client says, “Shut up just enter my plea” then the lawyers have to take instructions from their client. We get people requesting reports who then go through the report with their solicitor, think that they would rather not have some of the content before the magistrate, and withdraw their consent. They don’t want treatment? Sometimes. Or sometimes they don’t want their substance abuse history laid bare or they might reconsider and go, “Actually I think I’d rather just plead guilty and get it over and done with. I don’t have to wait another four weeks while I go and see community mental health and get a treatment plan together”. People do make their decision based on “I just want this dealt with”. They don’t mind having a conviction.

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It would appear that some defendants preferred custody, or taking their chances in a bail application, rather than admitting to having a drug problem or mental illness.10

Conclusion This chapter has provided an overview of how pretrial services are offered both in Australian States that have limited resources delivered through courts on an ad hoc basis and in the State of Victoria in which case workers assist defendants in an integrated system. Although more research is needed, we hope that this overview gives a sense of the value of such services, but also why they are controversial. From the perspective of criminal justice policy, those diverted to such programs would otherwise be remanded in custody. This has not reduced the remand rate which continues to rise in every State. But it may offer a way round the effects of tougher bail legislation. This is potentially controversial because bail legislation has been enacted through the legislative process, led by right-­ wing politicians and media commentators, whereas pretrial services arise from government officials and practitioners applying what is seen as the latest scientific advances in rehabilitation. Castellano (2011) warned in her study of a US court against the assumption that welfare practitioners make decisions any more rationally or accountably than judicial officers. She argues that “there should be avid debate regarding the court’s capacity to rehabilitate justice-involved persons in balance with the procedural protections of the law” (Castellano 2011, p. 152). This suggests the need for more research on how decisions about eligibility, allocation to programs and assessments are made in pretrial programs. Perhaps, though, this misses the point. The justification for expanding such programs is to keep defendants out of prison. Even if there is unfairness, and arbitrariness in decisions, there would be overall benefits in reducing the remand in custody numbers, including a substantial financial saving for governments.  More empirical research, perhaps speaking to lawyers and their clients, might reveal how such decisions are made. One possibility is that defence lawyers have different views about the value or appropriateness of the CISP for different types of clients. 10

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References Burns, S. and Peyrot, M. 2003. “‘Tough love’: Nurturing and coercing responsibility and recovery in California drug courts”. Social Problems. Vol. 50, No. 3, pp. 416–438. Castellano, U. 2011 Outsourcing Justice: The Role of Non-profit Caseworkers in Pretrial Release Programs. Lynne Rienner, Boulder, CO. Coghlan, P. 2017 Bail Review: Second Advice to the Victorian Government. Victorian Government, Melbourne. Donoghue, J. 2014. Transforming Criminal Justice? Problem-Solving and Court Specialisation. Routledge, London. Drakeford, M., Haines, K., Cotton, B. and Octigan, M. 2001 Pre-trial Services and the Future of Probation. University of Wales Press, Cardiff. Feeley, M. 1983 Court Reform on Trial: Why Simple Solutions Fail. Russell Sage Foundation, New York. Hanley, N. and Ross, S. 2018 “Forensic Mental Health in Australia: Charting the Gaps”. Current Issues in Criminal Justice. Vol. 24, No. 3, pp. 341–356. Hannah-Moffat, K. and Maurutto, P. 2013 “Shifting and targeted forms of penal governance: Bail, punishment and specialized courts”. Theoretical Criminology. Vol. 16, No. 2, pp. 201–219. Indemaur, D. and Roberts, L. 2003 “Drug courts in Australia: The first generation”. Current Issues in Criminal Justice. Vol. 15, No. 2, pp. 136–154. Law Reform Commission of Western Australia 2009 Court Intervention Programs. LRCWA, Perth. Meekins, T. 2006 “Specialized justice: The over-emergence of speciality courts and the threat of a new criminal defense paradigm”. Suffolk UL Rev., Vol. 40, No. 1, pp. 1–55. Passey, M., Bolitho, J., Scantleton, J. and Flaherty, B. 2007 “The magistrates early referral into treatment (MERIT) Pilot Program: Court Outcomes and recidivism”. Australian and New Zealand Journal of Criminology. Vol. 40, pp. 199–217. Richards, K. and Renshaw, L. 2013 Bail and Remand for Young People in Australia. Australian Institute of Criminology, Canberra. Ross, S. 2009. Evaluation of the Court Integrated Services Program. University of Melbourne, Melbourne. Tasmania Corrections Think Tank 2011 Establishing a Bail Hostel for Adults in Tasmania: Scoping the Issues and Opportunities. Tasmania Corrections Think Tank, Hobart.

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VanNostrand, M. and Keebler, G. 2009 “Pretrial risk assessment in the Federal Court”. Federal Probation. Vol. 73, No. 3, pp. 3–28. Wilson, S. 2018. “California abolishes cash bail, aiming to treat rich and poor defendants equally”. Washington Post, 29 August. https://www.washingtonpost.com/national/california-abolishes-cash-bail-aiming-to-treat-rich-andpoor-defendants-equally/2018/08/29/70891a9e-abad-11e8-b1daff7faa680710_story.html. Accessed November 2018.

9 The Prospects for Court Reform

This study has not only described existing practices but also considered reform initiatives. Reformers often favour introducing pretrial services, supported by risk analysis, with the aim of reducing the remand population. In Australia, only the State of Victoria has established an integrated system of pretrial services. In other words, there has not as yet been much reform. Yet the extent of change, or the desire for change among some practitioners and even policy-­makers, should not be discounted. A program offered by a court that assists 14% of defendants, even to the extent of providing them with housing on the basis of need, is a potential game changer. Although this initiative still stays “under the radar”, for political reasons, it has the capacity to shift the emphasis from punishment to crime prevention. In this chapter, we will consider court reform in more detail. The chapter starts by reviewing some relevant literatures on organizational change that could be applied to courts or the criminal justice system more generally. The abstract models are valuable but we also need to address and understand the specific contexts of political activity, both at a macro level within states and at a micro level inside organizations.1 The rest of the  The terms “micro” and “macro” can be confusing because they refer to many different phenomena and levels of society. Our study has focused on what happens in courtrooms, the “micro” level of 1

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chapter describes and considers macro processes in the Australian States of Tasmania, South Australia, Victoria and New South Wales, and the micro processes in some reform initiatives. In the conclusion, we identify some factors that explain conservatism and change in criminal courts.

How Criminal Courts Change Visiting criminal courts, it is easy to assume that there has been very little change to practices for over a hundred years, and perhaps even longer. This may be an illusion since criminal law has changed significantly, and whole new occupations have arisen including probation officers in the early years of the twentieth century (Garland 2018/1985) and Statefunded lawyers. New technologies may yet transform the work of courts (Susskind 2008). Nevertheless, legal practice has not changed substantially, and seems similar across the world. The New Haven court described by Malcolm Feeley (1979) has many similarities to lower criminal courts in Australia today. In every court there is probably at least one magistrate who is interested in therapeutic jurisprudence and believes that work could be pursued differently under that ideology. Yet, despite the existence of many reform movements, the criminal court has not yet been transformed. It is characterized by conservatism and a commitment to business as usual.

Organizational Theories The overlapping fields of organizational studies, social problems theory and social movements theory make a distinction between internally and externally generated change. Internally generated change arises when new ways of thinking develop within a professional group. A good example, which has nothing to do with law courts, is the scientific revolution that changed how we explain the natural world. This did not simply change law as a social institution. Many criminologists are interested in law as a macro institution representing dominant economic and political interests. In this chapter, we are interested in the political debates and reform initiatives that take place inside courts (see Flemming et al. 1992).

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particular theories or practices but resulted in a transformation or paradigm shift in how scientists understood the natural world. In a shorter historical time-frame, a new way of thinking might emerge among medical practitioners on how to make a diagnosis or conduct a particular procedure. The dissemination of new ideas takes time and is often contested. Thomas Kuhn (1962) argues that the new science only became established when the older generation expired.2 In the case of many organizations, change is not a smooth process. Katherine Kellogg (2011) notes how people have an emotional stake in existing practices: sometimes people conform to traditional ways of doing things not because it serves their interests, narrowly defined, but because these ways become so taken for granted that they are self-sustaining. … Over time, traditional ideas become entrenched either because people can’t conceive of alternatives or because they see them as inappropriate. (Kellogg 2011, p. 1)

Although Kellogg sides with reformers, she acknowledges that there are always positive and negative outcomes from changing existing practices. Yet traditional practices survive challenges, not because they are necessarily better, but because they are familiar. Externally generated change arises through pressure from outside the organization. Although pitched at an abstract level, the systems theory advanced by structural-functionalists, and later by new institutionalists, offers a helpful way of conceptualizing the self-sustaining character of organizations, yet also their dependency on their environment (Travers 2009, chapter 3). At the macro level, external circumstances that might lead to structural changes include defeat in a war and ecological disaster. External pressures can also force change at the micro level. When there are reductions in funding to public sector agencies, the type or quality of service is affected.

 New ideas only triumph when a new generation is appointed to positions of influence.

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Reform Movements in Courts Although criminal courts often seem stable and conservative organizations, there are internally and externally generated pressures that may lead to change. In recent years, the internal pressures have come from a number of intellectual and practitioner-led movements that seek changes to existing practices and philosophies. The pretrial movement in the USA, which has succeeded in changing bail practices in some courts, can be understood as a successful social movement within the legal profession. It is, however, only one of a number of reform movements that have arisen within the criminal justice system. These include calls for defendants who plead guilty to meet victims in restorative conferences (Daly and Hayes 1997), and for judicial officers to engage in a form of therapy rather than simply applying the law (Winnick and Wexler 2003). There have always been reform movements in the criminal justice system, especially in the fields of policing and corrections. These recent movements are unusual in proposing changes to criminal courts. The external pressures on courts come from governments reducing funds. Since welfare-oriented approaches are more expensive, one might ask why new initiatives are apparently flourishing at a time of budget cuts. The reasoning and mechanisms may be quite complex. One new development associated with the new public management and neo-­ liberalism has been that governments are seeking to invest in crime prevention: this may be more expensive initially but promise future savings. There are many areas of saving in criminal justice, including the reduction of welfare programs inside prisons, and cuts to legal aid. This makes it possible to invest in other areas, such as drug courts (Indemaur and Roberts 2003), that may rehabilitate hard to reach offenders. A more obvious externally generated pressure is prison over-crowding. In a rare study specifically about bail reform, Flemming (1982) found that a prisons “crisis” resulted in riots and intense pressure on criminal justice from black community groups. In response to this, courts became more willing temporarily to grant bail. One of the first questions we asked a senior magistrate was whether over-crowding in prisons affected how magistrates made bail decisions.

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We were told that this was definitely not the case. Yet without attending monthly meetings of the heads of different agencies, we cannot take such a response at face value.3 For example, the bail information scheme described later in this chapter was part of an initiative to reduce potential problems in prisons. More generally, any initiative has to be presented as having economic value in addition to treating defendants humanely.

Macro and Micro Considerations Analytically, it makes sense to consider change at both macro and micro levels. A macro perspective means looking at society as a whole, although it often recognizes the importance of different collective interest groups in shaping institutions. In some Australian States, the police have had a major role in lobbying for tougher bail laws (Brown and Quilter 2014). Organizations such as Legal Aid Commissions and Law Societies working with criminologists have promoted due process values. A central objective of any movement is to obtain support (at least political, if not financial) from the State. This means influencing legislation, securing funding to support new programs, and perhaps through the State requiring courts to adopt different practices. To give a dramatic example, the pretrial services movement in the USA has been successful in influencing a number of courts and counties. It has also had success influencing national professional associations and has attempted to promote national guidelines. Through effective lobbying, it has recently persuaded the State of California to mandate the introduction of pretrial services (Wilson 2018). This may end the bail bondsman system and create a new agency to administer and assess pretrial programs. Existing agencies, and occupational groups, will have to adapt to this new system. At the micro level, the sociologist is interested in the political debates that take place within occupational communities and organizations. This  A sense of the business of such meetings in large publicly funded organizations is conveyed by Anderson and Sharrock (2018). They were given the opportunity to attend and record meetings of senior managers in a university. Some of the routine business was reporting quality assurance information to the government and changing internal policies in a political process in response to these pressures. 3

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study only had limited access to practitioners around hearings. Researchers could not attend meetings or training days, or see email messages circulating among practitioners. Nevertheless, there have been studies about courts that recognize or address political processes. Flemming et  al. (1992) documented how the Public Defender’s Office and District Attorney’s Office in a number of courts during the 1980s were engaged in a political contest for status and resources. Occasionally, there are also studies that reveal different views on policy. Travers et al. (2013) interviewed all but one of the magistrates in Tasmania about their views on establishing a dedicated diversion list for young offenders (effectively a children’s court).4 Interestingly, but not surprisingly, there were different views. Some magistrates believed that this would enable a more effective response to young offenders, including an opportunity for the court to address welfare needs at the pretrial stage. But other magistrates felt it was an inefficient use of resources. Since it was possible to close an adult court when a young person was a defendant, there would be no advantages in having separate lists (Travers et al. 2013, p. 119). These interviewees also believed that it was important for magistrates to be generalists, rather than specializing in particular areas of law. There is a distinction between a group of professionals having different views in a collegial environment and this developing into a political contest that leads to a change in policy. What seems to have happened in the case of specialist courts and pretrial services is that a new generation of Chief Magistrates, supported by civil servants, have led reluctant colleagues. There seems no great desire in courts for changing existing ways of working. Although we do not know the details, we obtained some glimpses of internal political processes. One comes in reflections by magistrate Jelena Popovic (2008) on her initial experiences in introducing therapeutic jurisprudence and pretrial services in Victoria:

 Tasmania was asked to participate in a national project, with research groups collecting data in each of the six States and two Territories. The Chief Magistrate assisted in recruiting interviewees. By contrast, in this study we had assistance from most courts for facilitating observation of hearings, although some magistrates volunteered to be interviewed. 4

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Without knowing it, our Court had embarked on a course of therapeutic jurisprudence and problem-solving. Although I was passionate about the need to address the underlying causes of offending as a means of decreasing recidivism and reducing harm to the community, not all magistrates embraced these new approaches. I was at a loss to know how to encourage magistrates to utilise the services we had been able to put in place.

Popovic reports that there was initially opposition from 70% of magistrates but over time 70% of magistrates have been persuaded due to successful outcomes (personal communication).

Court Reform Within States The approach adopted in this chapter is to look at court reform relating to bail at the macro level, and then examine some initiatives in more detail at the micro level. By the macro level, we mean looking at how metropolitan courts as organizations have changed and developed in four States over a ten-year period. In a popular, but rather loose term, there are distinctive court cultures.5 A comparative approach may also help to identify different structural or cultural conditions, the beginnings of an explanatory model. We did not have access to many insiders who were able, or willing, to provide internal histories. Despite these limitations, we can make some observations about differences between courts and the current prospects for court reform.

Tasmania We started our study in Tasmania encouraged by practitioners, politicians and community groups who were interested in court reform. Tasmania is the smallest State in Australia with a population of only 500,000. It is also the poorest State in Australia. One distinctive feature is that crime is not a political issue. There is little competition between  The term “culture” can encompass legislative differences, values and practices in a court community and the wider political environment. 5

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newspapers that might result in law and order “moral panics” and limited debate about criminal justice policy during elections. Although there is quite a conservative political environment, Chief Magistrate Michael Hill established a drug court and mental illness court (Newitt and Stojkevski 2009). The drug court received some government funding. The mental illness court was an informal arrangement through managing court lists. These initiatives illustrate how change is possible in a small court, but also the challenges. Concerns have been expressed about staffing in each of the magistrates courts we visited, including the number of magistrates and legal aid lawyers. In terms of bail, Tasmania has drawn on common law principles until recently that are generous towards applicants. There have been some significant changes. The Family Violence Act 2004 was a tough response to a rise in domestic violence. Section 12 reversed the burden of proof in bail applications for defendants charged with offences relating to domestic violence. In January 2018, the State government proposed a new bail law that would introduce an “unacceptable risk” test based on legislation in some mainland States (Department of Justice 2018). This new legislation effectively reversed the burden of proof for many defendants who are not charged with domestic violence. It also proposed to end the right of appeal (technically the right to submit a fresh application) to the Supreme Court. It was part of a package of measures, including investment in Risdon prison and ending suspended sentences, intended to combat crime and modernize legislation. In Tasmania, there are limited resources to support rehabilitation programs, and within the criminal justice system governments have prioritized initiatives in prisons. To give an example, the Department of Justice is considering closing Ashley Youth Detention Centre and replacing it with two facilities in population centres. This is not meant to suggest that practitioners and policy-makers have no interest in bail reform. They have to work within resources, and what is politically possible.

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South Australia South Australia, with a population of 1.75 million people, stood out in the national statistics for many years in having a large remand population as a proportion of the prison population. Nevertheless, this court took a lead in establishing a drug court and mental health list (combined in a Treatment and Intervention Court), and a specialist Indigenous court. It has also been the only State that has pursued and developed a program of electronic monitoring. It has also established a bail hostel, with forty beds, working with a religious charity. Our understanding of these developments draws on interviews with a few senior managers and practitioners. The interviews may only give a partial view or reflect the organizational challenges facing the court during our visits. One distinctive feature is that practitioners strongly believed that drug programs only worked if defendants pleaded guilty: One of the most important things in the Treatment Intervention Court is honesty, honesty to the court, honesty to yourself, honesty to the person who’s testing you, honesty to your case worker, honesty to your family, honesty to yourself. And if you come to that court without having admitted you’re offending, then there’s no real basis that we can start that process.

Electronic tagging was employed to support this program. It was also used to give bail to defendants who pleaded not guilty. According to the interviewees, this resulted in South Australia having a low remand rate (even though national statistics could not always see the distinction between home detention and being remanded in custody). Home detention was only possible for defendants who had stable housing. This is why the court had established a bail hostel. At the time of our visits, the bail hostel was mainly used to assist defendants charged with serious offences who had already spent over a year in the remand centre. The objective was to house defendants charged with minor offences for short periods. Case workers in the hostel obtained access to public housing, although this took time. This suggests that defendants might find it easier to obtain housing than other homeless people. The system for allocating housing is more complex: there was no ring-fenced

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allocation of housing or “good quality” housing to defendants. Nevertheless, the hostel enabled the court to grant bail.

Victoria Victoria is a large, economically successful State with a population of over six million. It has received a lot of attention in this study. This is because it is the only State that has an integrated system of pretrial services. Eligible defendants are offered a four-month program in which they have access to drug programs and other services, accessed through case workers. Since it was established in 2009, the program has expanded into more courts. It has also increased the range of services offered and achieved more referrals from practitioners, including magistrates. There are prominent signs advertising the service in court buildings. Since mid-2018, officers have become part of the workgroup in the after-hours Night Court. Victoria has a distinctively progressive court culture. However, tolerance is no longer visible in statistics about remand since magistrates have a higher refusal rate than other states. Nevertheless, there are a few ways in which cultural differences are evident. First, several magistrates employ techniques from therapeutic jurisprudence. Second, there are subtle but important differences in how court buildings are designed. In the central court in Melbourne there are no plastic screens separating defendants from staff at advice kiosks. Third, there is less security than in the other courts we visited. Security guards accompany defendants from the cells into the dock. But there were no additional security guards in courtrooms.6 Fourth, the public ceremonies that take place in this court, for example, when appointing new magistrates, celebrate fairness, community ties, intellectual qualities and independence.7  One should not assume that the presence of security guards is connected to greater punitiveness. The different system in Adelaide may arise from historical circumstances or even the power of local unions to maintain staffing despite pressures to cut costs. 7  It might be difficult to find a strong relationship between values expressed in such ceremonies, and how individual magistrates make decisions or whether they employ methods from therapeutic jurisprudence. 6

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Victoria has established both specialist courts8 and pretrial services, including the CISP described in Chap. 8. Even without these services, defendants can draw on a well-funded welfare state. There is, for example, no need for a dedicated bail hostel since there is already support for homeless people. There has been generous funding for new initiatives. We learnt from a policy officer that most money in recent years was directed at services for victims of domestic violence. However, other agencies including CISP were successful in submitting applications because they were also addressing this problem. Despite increasingly tough legislation on bail, there is still a distinctive political and governmental culture in this State that supports welfare initiatives in criminal courts.

New South Wales New South Wales is another large, economically successful State with a population of 7.5 million. There has been a high remand rate for a long period. In this State, bail law, and criminal justice generally, is highly politicized. The police, right-wing politicians and “shock jocks”9 have campaigned for tougher bail laws, along with higher sentences. Academic lawyers (e.g., Brown 2013) have defended due process values. The history of bail legislation is complex. There was a gradual erosion of the right to bail through reversing the burden of proof for particular offences. Then there were calls to simplify the law that had become difficult to use or understand. The government introduced an “unacceptable risk” test. However, there was then a backlash, in the context of concerns about offences committed by defendants on bail. An Attorney General resigned during these controversies (Brown and Quilter 2014). There was then a change in policy introducing the tougher “show cause” test.

 These include an Indigenous (Koori) court and a community court modelled on an experimental court in New York. 9  There are right-wing, populist newspapers in Victoria, as well as in New South Wales. “Shock jocks” seem to be unique to New South Wales: there are right-wing commentators, such as Ray Hadley and Alan Jones who broadcast to large audiences. 8

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New South Wales has also established drug and mental health courts, and a specialist court for Indigenous offenders. In relation to bail, there is the long-established MERIT program, described in a previous chapter. This can be distinguished from the CISP in having narrower eligibility criteria, and for seeking to assist defendants who have already been granted bail (even if some magistrates consider assessments when making bail decisions). Otherwise, few initiatives in New South Wales have sought to reduce the remand population. Reports published by different agencies seem to discount the significance of vulnerabilities such as being homeless (Ayres et al. 2010) or having a drug problem (New South Wales Law Reform Commission 2012) in causing crime. There was, however, an initiative being pursued by the Attorney General’s Office while we conducted fieldwork during 2017 as part of what was called the Transformation Program. The overall aim was to reduce the prison population. The bail initiative within this program was an attempt to establish what we have been calling an “information scheme”. Bail Assessment Officers (BAOs) would collect information about defendants and supply reports to magistrates. It was expected that magistrates would be more likely to grant bail to defendants when they had fuller information about vulnerabilities.

Reform Initiatives Our interviews with practitioners and policy officers made it possible for us to understand some reform initiatives in greater detail. Although these are far from being full case studies, they make visible the micro-political considerations. Two of these examples concern reform initiatives that were blocked, and the third gives an insight into the political and practical work of introducing new legislation.

A Proposal for a Bail Hostel Tasmania is the smallest of the four States where we conducted research on bail decision-making. It has a limited surplus from local taxation and

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depends on assistance and grants from the Commonwealth government. In delivering some government services, it also draws on assistance from the not-for-profit sector, particularly religious organizations such as Anglicare and the Salvation Army. In Tasmania, the Salvation Army established a residential drug treatment centre in Hobart and provided housing and related services to people who have been released from prison. When we interviewed the manager of these services, the government had recently withdrawn financial support for a reintegration program that had been running for several years (Smiley 2015). The Salvation Army had argued that specialist services were needed to reduce recidivism and that ex-prisoners faced difficulty in obtaining housing. The government took the view that ex-prisoners should not be given preference over other homeless people when allocating housing. Those working in the Salvation Army were realistic about the difficulties in securing funding for new initiatives or sustaining existing programs, given competing priorities: I would say I’ve had a good relationship with the Minister for seven years now. I’ve assisted with the Breaking the Cycle report writing the policy around that...That’s a really great position to be in. The problem we’re up against is dollars. At the end of the day is it popular to spend money on somebody who’s in prison when in our sector we have families sleeping in cars, women fleeing domestic violence? I would say if you asked anyone in the street, they would say spend the money on domestic violence. Spending money on recidivism is not a vote catcher.

The history of attempts to establish a bail hostel illustrates the difficulties experienced in obtaining funding. The need for a hostel arises because magistrates will not bail people into homelessness. They believe that living on the streets or even couch surfing will lead to criminal activities. The difficulty in Tasmania is that there is limited public housing for the homeless. The main hostel, Bethlehem House, was not considered suitable for those charged with criminal offences: There’s no such thing as a bail hostel in Tasmania and Bethlehem House has been used as a pseudo bail hostel or place where people can be released

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to. The difficulty for the authorities is if you are doing a pre-sentence report where are you going to live and a lot of the officers will say “No, you can’t live at Bethlehem because such and such is living there”. So putting two known associates in the same place is setting them up to fail. It also has to be accepted by Bethlehem House. They don’t necessarily want people who will be a challenge to be released there. The difficulty is, if people muck up, they’ll be kicked out and they won’t be allowed to come back. They’ll be timed out sometimes for a week, sometimes for three months or a year.

Not-for-profit agencies and the government believe that a bail hostel would be effective in reducing the remand population and combatting recidivism. There have been attempts over a number of years to realize this policy initiative. However, it has proved difficult securing financial support: We tried this on a small scale. We were looking at a 15-bed facility down in town where we could dovetail some programs. We could also provide secure accommodation for someone to be bailed to, so it was a safe place. Instead of people going couch surfing or sleeping on the streets that had supervision and we could case manage people through even setting up a bank account, keeping appointments and those sorts of things. For the outlay we were looking for about $2,500 a week to rent the property. If we were getting Centrelink money to stay the night, it would almost have been cost neutral just to run the facility. But the big costs were the employment costs having a supervisor and support staff. The proposal had merit but it didn’t get past the Salvos at the time even though the government were interested in looking at it. There was no capacity at that time.

This account of a reform initiative suggests that the main obstacles are partly political because the housing needs of remand prisoners will come before other deserving groups. There are practical challenges in coordinating different agencies. Yet most of the challenge is financial. It might still be possible to establish a bail hostel, as has happened in South Australia, with generous funding from a charity.

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The Bail Assessment Officer Pilot When we visited Sydney in June 2017, we were pleasantly surprised to find that a bail information scheme was being piloted. This initiative was part of a Transformation Program pursued by the Department of Justice that investigated different ways of reducing the pressure on prisons. There were different views and competition for resources within the same department: We have got three Ministers for our justice cluster. That makes things really difficult, because you’ve got an Attorney-General who is quite progressive. And has been a prosecutor so he’s aware of the issues. Then you’ve got the Police Minister, who’s an ex-police officer. I know from the last unit I was with, they’d have their ministerial council meeting once every three months, and nothing would be decided because no-one would agree on anything.

One research group was looking into whether prison beds could be used more effectively. Another was considering transport issues: how it might be possible to reduce bottle-necks. There was also a group tasked with finding ways to reduce the growing remand population. The bail group may have been indirectly influenced by the Manhattan Bail Project, described in Chap. 7. Drawing on contacts in a few courts, the pilot scheme collected information about defendants charged with mid-range offences who were applying for bail. Information was obtained from the police, but in addition Bail Assessment Officers interviewed defendants in remand centres. They obtained information about medical conditions and drug and alcohol problems. They also checked they had appropriate accommodation if they were released through making phone calls. Reports were initially provided to magistrates, Legal Aid and prosecutors before the bail application. There were different views on the value of the program. BAOs believed that the information collected resulted in many defendants obtaining bail. They reported positive feedback from magistrates and prosecutors. There was, however, also opposition, and not simply from managers in the Department of Justice who believed that resources could be better employed in other areas of business, such as counter-terrorism and

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policing. Some police stations and Corrections officers blocked access to defendants. There was also opposition from Legal Aid, who argued that some reports made it more difficult to obtain bail: Sometimes the reports say things that they shouldn’t say. They talk about things like their mental health, and they’re dangerous, or we can’t establish that they live there. We’d rather just say that they live there. It’s still finding its place. Some of our solicitors don’t like it, because the reports get to the magistrate before we vet them, and these people have no standing. They’ve got no training. But we’ve reached a point where we have an understanding that reports just go to the solicitor, and not directly to the magistrate.

It was hoped to expand the pilot to more courts, and perhaps obtain permanent funding. Another idea was to introduce some support for defendants on bail, even to the extent of sending reminders about court dates. None of these plans were realized, however, since the program was discontinued one year into the two-year pilot.

Introducing New Legislation Micro politics as broadly defined includes any dispute or disagreement relating to government policy. This includes the many different views that arise when introducing and implementing new legislation. These discussions are not, however, of an abstract character in the way policies are often presented in academic texts, but take place in the practical conditions of having to make changes quickly, even if this results in mistakes that may be corrected in a subsequent review. The revisions to the Bail Act (Vic) during 2017 and 2018 provide a good example. They resulted in the “exceptional circumstances” test described in Chap. 5 that made it much more difficult to obtain bail. We obtained an insight into the behind-the-scenes work from a policy officer on the steering committee. The Bourke Street rampage was an extremely concerning event that indicated a failing in the criminal justice system. The government immediately commissioned the Coghlan review (2017). There were two parts of the review, a response to the need to legislate quickly on the changes

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that were seen as having most political priority. The reports also indicate a compromise between groups with different viewpoints in the Department of Justice. Those concerned about offences on bail were satisfied with the changes to the legal tests (that went further than the Coghlan proposals). Those concerned about due process obtained further funding for CISP and promised that those with minor charges would be diverted from the criminal justice system. This was a political process: The government published Coghlan’s recommendations, and they published their response to his recommendations. They said, “We will implement all of his first-advice recommendations and we will consider further his second-advice recommendations”. The first-advice recommendations mainly relate to the Bail Act. The second advice mainly related to other things like establish a bail and remand court, expand CISP, reduce the number of police who are charging people on bail and then look at whether or not they should be charged on summons because those people are being caught up in the bail and remand system unintentionally. It was a very high-level committee, so the heads of all those agencies were coming to the meeting. And we kept everyone informed from all those agencies about the proposals as we went along. So, they all got to have all the information about what was going to come, even though they didn’t like it. They would not say they did not like the policy at the committee. They might have privately written to the Attorney and said, “We really don’t like what you’re proposing for the Bail Act”. But I think they knew in the political climate where the Herald Sun, every single day, was saying that the government was weak, that law and order is out of control. They knew that it wasn’t going to be politically palatable to say to government, “You shouldn’t make these changes to the Bail Act”.

The main political issue arose because the legislation had been drafted quickly. There were unintended consequences in that defendants who had committed a number of minor offences were also caught by the “exceptional circumstances” test. This is complicated, and perhaps deserves more technical discussion. The policy officer was frank about the consequences:

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It’s not symbolic because it’s capturing a lot more people who are now finding it hard to get bail. And there’s a lot more cases of “guilty” happening very quickly when people get arrested because they can’t get bail. And they might have had a defence but they’re pleading guilty because they want to get out and there’s no way they’ll get a custodial sentence for the offending that they’ve got. So, we do have that. That’s a major shift, where you’ve got people in custody who can’t get out because of the way the Bail Act is impacting on them, who would never get a custodial sentence for the offending.

Legal Aid had raised concerns about this issue. It was likely, although not inevitable, they said, that there would a “re-balancing” as the committee reviewed the effects of the new Bail Act. It illustrates how policy is shaped by “behind the scenes” lobbying. This may not even be visible in committees in which everyone has to respond to political pressures to address the crime problem. It takes place through informal communications between agencies.

Conclusion This review of changes in Australian criminal courts relating to bail has been partial and exploratory. Nevertheless, it reveals a dimension of the legal process that is rarely addressed or acknowledged in discussions of black letter law, quantitative studies evaluating initiatives or reviews of different programs: the decision-making process, its logistics and its impact. The missing dimension can be addressed at the macro level, through looking at the differences between States and seeking to compare legal cultures and political environments from some independent vantage point, or it can be addressed from within at the micro level through supplying case studies and documenting different perspectives. Overall, what can we conclude about the prospects for reform? Firstly, we should accept that courts are conservative organizations. This is often socially and politically constructed by expectations and current norms. Whether courts are more conservative than other large public sector agencies supplying services is, however, a question that can be debated.

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One distinctive feature is that the criminal justice system consists of independent agencies that are not subject to central direction. The practices employed change slowly, and there is a preference for business as usual. When interviewing practitioners we found that most did not reflect on their work and had no views on policy initiatives such as pretrial services. Perhaps they were cautious in talking to outsiders (itself indicating conservatism). We would not see practitioners or occupational groups as actively seeking to defend their economic interests and status (cf. Kellogg 2011). Perhaps the simplest answer is that, like most “street level bureaucrats” (Lipsky 2010) with high case-loads, practitioners have no time to reflect. In any case, it is hardly worth considering new programs when funding has steadily reduced over time for existing agencies. The account in this chapter also makes possible a more optimistic view. Despite the difficulties, there have been reform initiatives in each of the states we visited. The most striking example is the State of Victoria in which a substantial, well-resourced pretrial services program has been established and is expanding with cross-party political support. Introducing similar initiatives into Tasmania and South Australia might seem unlikely. These States have much smaller welfare systems and no surplus to invest in new programs (or rather scarce resources are directed to other parts of the criminal justice system). Even in such States, courts have succeeded in establishing specialist courts, sometimes without funding.10 In New South Wales, there appears to be little interest in reform. Even here, the MERIT program has had quiet success offering a service in multiple courts. The Bail Assessment Officers pilot (a bail information scheme) illustrates the political and practical difficulties of seeking to introduce a new initiative. Yet the fact that the pilot was backed by the Attorney General’s Office indicates there are opportunities for reform even in a State with tough bail legislation. Some conditions can be identified from the case studies that explain why reform initiatives arise and are successful. First, it helps to have a substantial government surplus and existing welfare services. We should not criticize smaller States for not modernizing their court  It is easy to view such initiatives as tokenistic, if one is hoping for systemic change. Looked at optimistically, they are part of a gradual process that will lead to welfare-oriented courts. 10

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systems. In the Australian context, perhaps they require federal s­ upport to offer pretrial services. Second, reform arises through leaders who have the support of a policy network within government. In Victoria, individual leaders of reform include Popovic and the former AttorneyGeneral Rob Hulls. There has been a cross-party consensus about the value of welfare initiatives and a whole of government approach. It should also be added that government departments have trusted agencies to develop new services without constant monitoring and evaluation. Third, those pursuing new initiatives need political skills in persuading opponents committed to traditional practices. The Chief Magistrate in Tasmania who provided leadership was Michael Hill. Admirers point to his political skills in building coalitions and defusing obstacles. One interviewee reported that magistrates who were hostile or lukewarm towards the proposals accepted the changes provided they did not affect their own working practices. Overall, it is difficult to predict whether court reform will succeed or how long this might take. The bail movement in the USA has been campaigning against the bail bondsman system for eighty  years and has still only changed 10% of courts (Baughman 2018). We would tentatively conclude that there are good prospects for reform in Australia, even as bail legislation becomes tougher or perhaps because more defendants are remanded. Change is most likely in the larger States: Victoria, New South Wales, Queensland and Western Australia. There may be further initiatives in smaller States and Territories. Although Victorian magistrates have gone furthest, there are magistrates across Australia interested in taking up new practices. Although we were unable to conduct a survey, it would appear that younger practitioners and a new generation of senior managers are most receptive. It would be interesting to examine these organizational processes in more depth.

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References Anderson, R. and Sharrock, W. 2018 Action at a Distance: Studies in the Practicalities of Executive Management. Routledge, New York. Ayres, S., Heggie, K. and de Almeida Neto, A. 2010 Bail Refusal and Homelessness Affecting Remandees in New South Wales. Corrective Services NSW, Sydney. Baughman, S. 2018 The Bail Book: A Comprehensive Look at Bail in America’s Criminal Justice System. Cambridge University Press, Cambridge. Brown, D. 2013 “Looking behind the increase in custodial remand populations”. International Journal for Crime, Justice and Social Democracy. Vol. 2, No. 2, pp. 80–99. Brown, D. and Quilter, J. 2014 “Speaking too soon: The sabotage of bail reform in New South Wales”. International Journal for Crime, Justice and Social Democracy. Vol. 3, No. 3, pp. 4–28. Coghlan, P. 2017 Bail Review: Second Advice to the Victorian Government. Victorian Government, Melbourne. Daly, K. and Hayes, H. 1997 “Restorative justice and conferencing”. In A.  Graycar and P.  Grabosky (eds.) The Cambridge Handbook of Australian Criminology. Cambridge University Press, Melbourne, pp. 294–311. Department of Justice (Tasmania) 2018 Reforms to the Tasmanian Bail System: Position Paper. Tasmanian Government, Hobart. Feeley, M. 1979 The Process is the Punishment: Handling Cases in a Lower Criminal Court. Russell Sage, New York. Flemming, Roy 1982. Punishment Before Trial: An Organizational Perspective of Felony Bail Processes. New York: Longman. Flemming, Roy, Nardulli, Peter and Eisenstein, James 1992. The Craft of Justice: Politics and Work in Court Communities. Philadelphia: University of Pennsylvania Press. Garland, D. 2018/1985 Punishment and Welfare: A History of Penal Strategies. Quid Pro Books, New Orleans. Indemaur, D. and Roberts, L. 2003 “Drug courts in Australia: The first generation”. Current Issues in Criminal Justice. Vol. 15, No. 2, pp. 136–154. Kellogg, K. 2011 Challenging Operations: Medical Reform and Resistance in Surgery. University of Chicago Press, Chicago. Kuhn, T. 1962 The Structure of Scientific Revolutions. University of Chicago Press, Chicago. Lipsky, M. 2010 Street-Level Bureaucracy: Dilemmas of the Individual in Public Services. Russell Sage, New York.

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New South Wales Law Reform Commission 2012 Bail. Report 133, NSWLRC, Sydney. Newitt, E. and Stojkevski, V. 2009 Mental Health Diversion List: Evaluation Report. Magistrates Court of Tasmania, Hobart. Popovic, J. 2008 “The art of judging”. Southern Cross Law Review. Vol. 12, pp. 169–179. Smiley, S. 2015 “Axing Tasmanian housing scheme for ex-prisoners will affect public safety, former minister says”. ABC News, Hobart. https://www.abc. net.au/news/2015-04-27/calls-to-reinstate-axed-housing-scheme-for-exinmates/6424438. Accessed February 2019. Susskind, R. 2008 The End of Lawyers: Rethinking the Nature of Legal Services. Oxford University Press, Oxford. Travers, M. 2009 Understanding Law and Society. Routledge, London. Travers, M., McKinnon, M. and White, R. 2013 “The Children’s Court in Tasmania”. In R. Sheehan and A. Borowski (eds.) Australia’s Children’s Courts Today and Tomorrow. Springer, New York, pp. 103–121. Wilson, S. 2018. “California abolishes cash bail, aiming to treat rich and poor defendants equally”. Washington Post, 29 August. https://www.washingtonpost.com/national/california-abolishes-cash-bail-aiming-to-treat-rich-andpoor-defendants-equally/2018/08/29/70891a9e-abad-11e8-b1daff7faa680710_story.html. Accessed November 2018. Winnick, B. and Wexler, B. 2003 Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts. Carolina Press, North Carolina.

10 Conclusion: Rethinking Bail

There has, so far, only been limited research that describes routine work at the pretrial stage either in Australia or internationally.1 Although based on a modest amount of observational research, and analysis of descriptive statistics, we hope that this empirical study will assist those concerned about the rising remand rate. Our study has described how magistrates currently make decisions, and the difficulties experienced by vulnerable defendants; explored alternatives in risk analysis and pretrial services; and considered the question as to how courts change. This concluding chapter will review the concepts and evidence that have informed our analysis and invite practitioners and academics to question business as usual.

 In Australia, Sarre et al. (2006) compared South Australia and Victoria drawing on available statistics. The study left some questions unanswered and was limited to two States. There has been almost no qualitative research about bail processes internationally. 1

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Risk and Vulnerability Our analysis has been informed by two concepts, each of which can be understood differently and lead to a variety of policy initiatives. The evidence will not persuade everyone, but we believe it makes a strong case that some change is needed to how criminal courts currently make bail decisions.

Risk For much of the nineteenth century, defendants were presumed innocent before trial and granted bail in most circumstances. However, risk has gradually taken over, as part of a shift towards actuarial justice that calculates the cost of crime, and seeks to devise the most efficient methods in administering justice (Simon 1988; Feeley and Simon 1992). Attempts to reduce the risk of reoffending have resulted in tough bail laws. Against this, risk analysis in some US courts has employed scientific methods with the aim of reducing the remand rate, with limited success. Even though this is not admitted publicly, managers in the criminal justice system accept that the currently high remand rate2 adds to the overall prison population and is expensive. It would be preferable to spend some of these funds on other initiatives, including crime prevention.3 In Australia, there have already been evidence-based programs that attempt to change practices (Willis 2017). During our research, we came across a bail support scheme piloted by the New South Wales government. The pilot was discontinued in favour of spending limited funds on other measures to reduce prison over-crowding. The objective was to reduce the remand rate by giving fuller information to magistrates. Magistrates make use of such programs when they are available. They draw on pretrial services when these are arranged by defence lawyers or through the courts in integrated programs. We cannot advise how introducing a points system, as happens in some US courts, or supplying  Measured as the proportion of remand prisoners in the overall prison population.  This is the objective of the Justice Reinvestment movement (Brown et al. 2012, 2016).

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actuarial information to magistrates would influence the remand rate. Much more empirical research is needed, but at present there seems little interest outside Victoria in changing existing practices.

Vulnerability The concept of vulnerability, as used by many welfare agencies, has been criticized, in a similar way to the concept of risk, for being too vague both in how it identifies groups requiring special help and in how it explains the causes of anti-social behaviour and crime (Brown 2015). Because they generally come from economically and socially disadvantaged backgrounds, and have low levels of education, most defendants could be seen as requiring social support. Most defendants are also vulnerable in the sense that they have little control of what happens to them when they come into contact with criminal justice agencies such as the police, court and prisons. Even professional criminals, people who calculatedly make money from committing offences, and enjoy this lifestyle, can be viewed from a welfare perspective as a vulnerable group. Most welfare professionals in the criminal justice system, those concerned in one way or another with therapeutic justice, use the term “vulnerable” to refer to particular groups who have even less control of what happens to them, and in some cases cannot make rational decisions.4 They are, because of social or psychological circumstances, especially vulnerable. These defendants include drug users, the mentally ill and the homeless. Because the concept implies a deficit, we have argued that mitigating factors from membership of social groups should be understood as arising from structural inequalities and not described as vulnerabilities. In each case the problems and practical issues are different, but each group often receives special treatment, even if the criminal law does not recognize distinctions between defendants.  This starts to indicate the problems with the concept of vulnerability in that it might be perfectly rational for some groups or individuals to commit crime. Concepts such as vulnerability and risk assume that offenders are deviant or have some kind of cognitive and social deficit, and can be helped by welfare professionals. They do not always recognize structural dimensions of society, such as systematic inequality, that result in crime (Wacquant 2009). 4

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As discussed in Chap. 2, initiatives in therapeutic justice recognize the social and psychological causes of crime. The pretrial services movement goes further in seeking to deliver targeted programs to all defendants, based on an analysis of the risk of not appearing at court or satisfying bail conditions. This report cannot comment on whether these programs work. Our account of business as usual does, however, indicate the need for a more integrated system of providing services at the pretrial stage in Australia. It will be apparent, first, that many defendants have drug or mental health problems, but because they are pleading not guilty, or eligibility is narrowly defined, they cannot access the support available in the drug courts or mental health lists. Second, some defendants with addictions or other psychological problems are only in prison because there are inadequately resourced services in the community.

Social Justice Law reformers seldom ask broader, sociological questions such as why offences are mainly committed by members of disadvantaged, low-­ income groups (Wacquant 2009). We met a chaplain from a religious charity who advised that many defendants had “literally not eaten for days”. He put them in contact with emergency food distributors. We cannot solve or address the structural problems, including growing inequality, that result in offending. Perhaps it is enough to ask questions about the fairness of the criminal justice process, and whether it lives up to its own standards and promises. It has been shown many times in sentencing research that courts and even particular judicial officers differ considerably in how they respond to crime. Similarly, there are differences in rates of remand at the pretrial stage between different States. Although one can ask legitimate methodological questions about the value of comparative statistics (Sarre et al. 2006), it seems that until recently courts have been more likely to refuse bail in New South Wales and South Australia than in Victoria or Tasmania. It also seems important to know whether bail is being used punitively, whether this arises from a deliberate policy pursued by one or more agencies, or whether this happens accidentally. Even though few in the wider

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community are interested in such findings, they make legal practitioners feel uncomfortable. This is because they believe in the principle first advanced by Cesare Beccaria (1995/1764) that sentencing should be proportionate, so it is not acceptable for a defendant to spend many months remanded in custody after committing a minor offence. This study cannot provide conclusive answers to comparative questions as to how remand rates differ between Australian jurisdictions, and why the overall rate has increased. Statistical evidence has failed to influence governments, or even to persuade them to collect performance information. Our mainly qualitative research did, however, result in some interesting findings. In Tasmania, police bail is normally granted. In New South Wales, defendants alleged to have committed minor offences are routinely refused bail. In Victoria, police officers are required to give evidence in court (which may result in fewer contested applications). In Victoria, 14% of defendants are assisted by pretrial services. Some magistrates use techniques from therapeutic jurisprudence in monitoring progress. In South Australia, there is home detention but each defendant has to spend a week in prison while the circumstances of their security bracelet (or none) are assessed. There is a lot of variety in Australian courts, and magistrates exercise considerable discretion. The reliance on intuition and judgement in determining how long a defendant may spend time in custody will probably not persuade a critic that the bail system is working fairly. Because there is no measurement and monitoring, we simply do not know the extent to which bail is used punitively. Perhaps a more telling, if expected, finding is that occasional mistakes, even if they result in mass murder, are viewed as acceptable or inevitable given that risk can never be eliminated. Therapeutic programs, such as drug courts, can be criticized for only assisting a small number of eligible defendants. But they can also be seen as the first stage of a transformation in the criminal justice system that in some States of the USA has led to a dramatic fall in imprisonment numbers. Pretrial services are significant because they potentially offer therapeutic support and programs to all defendants. In the USA, this has been

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achieved through outsourcing bail decisions and services to not-for-profit organizations under the supervision of judicial officers (Castellano 2011).5

Alternatives to Business as Usual Academic research is often commissioned by policy-makers who already have ideas on what could change, but are interested in supporting this with evidence and in obtaining a better understanding of international developments. In the case of pretrial services in Australia, it seems likely that there will be new initiatives. The Departments of Justice in Queensland and Western Australia may adapt a version of the pretrial program established since 2009 in Victoria. It may be possible to establish a small bail hostel in Hobart. Even though this will only have the capacity to assist a few defendants, it is a first step towards offering a range of services through the magistrates courts. The program in Victoria is expanding to suburban and country courts. Given that these changes are already happening, only a few recommendations seem appropriate.

Recommendations 1. Magistrates courts in Australia should continue with, and build on, the successful initiatives influenced by therapeutic jurisprudence established in the last twenty years: children’s courts, drug courts and the mental health lists. 2. These courts should continue to innovate, looking out for therapeutic initiatives pursued in different States and countries. Pretrial services offer an additional, effective means of reducing imprisonment. 3. Despite having limited resources, courts should continue as best practice to evaluate initiatives. Courts should not be content with business as usual. They should collect data systematically on bail decisions and outcomes.  Privatization might result in a faster criminal justice system with a greater emphasis on providing welfare services and crime prevention but fewer resources for representation or due process rights. 5

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How can criminologists assist? Bail decision-making remains an underresearched stage of the criminal justice process. Even in the USA, there have been relatively few empirical studies of pretrial services that have not been concerned with advocating risk analysis. More generally, there seems little coverage in the media on the changes taking place in criminal courts through different therapeutic initiatives or the possibility of further changes.6 The purpose of criminological research is, arguably, not to push for one point of view, but to present the facts and arguments that enable informed debate about criminal justice policy. In the case of jurisdictions outside the USA, it would help policy-­ makers to have better quantitative evidence on how decisions are made in courts, with, for example, high and low refusal rates, building on previous studies.7 We could also seek to understand the processes in more depth through interviewing practitioners and conducting observational research. In our view, what is most required is understanding rather than evaluation. Practitioners and policy-makers, as well as a new generation of law students, might benefit from learning not only the philosophy behind therapeutic jurisprudence but what happens in practice. Finally, an economic argument needs to be made. We have known for a long time that incarcerating a person is significantly more expensive than supervision in the community. Accepting that arguments of due process and presumption of innocence have failed, and that the safety of the public is paramount, we still need to look at the economic and social benefits of investing in robust and reliable ways to monitor alleged offenders in the community. Bail conditions have often proven to be rehabilitative and constructive. Their monitoring, though, needs some careful thought process and critical observation. Such logistics can be  A Victorian magistrate, Jelena Popovic, was featured on an Australian Broadcasting Company (ABC) documentary (2017) practising therapeutic jurisprudence. One could argue that this gave a misleading impression that most magistrates employ these techniques. 7  The questions that should inform these studies, in our view, should be what causes the rapid rise in the remand rate and what measures could be used to reduce this. Access to files, especially through prosecutors, would make it possible to understand processes in greater depth through employing quantitative methods than simply observing hearings. Another approach would be to seek to increase the number of applications observed from 150 to 400, and extend the study to the remaining two States (Queensland and Western Australia) and two territories (ACT and Northern Territory). There is a considerable amount of quantitative and qualitative research that could be conducted by criminologists in Australia and elsewhere about the pretrial stage. 6

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daunting, especially since they require the participation of multiple agencies working in collaboration and sharing resources. Perhaps this is one of the reasons why bail reform is so difficult.

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 References 

Legislation Bail Act 1977 (Vic). Bail Act 1985 (SA). Bail Act 2013 (NSW). Bail Amendment (Stage 2) Act 2018 (Vic). R v Fisher 1964 (Tas).

235

Index1

A

Actuarial guide, 18, 151, 153, 156, 168 Adequate sample (quantitative research), 50 Algorithms, 17, 154, 164–166 Anglicare, 207 Ashley Youth Detention Centre, 202 Attorney General’s Office (New South Wales), 206, 213 Australian Bureau of Statistics, 2n1, 3n2, 47, 137 B

Bail bail assessment officers (BAOs), 206, 209–210, 213 hostel, 37, 129, 174, 181, 182, 203, 205–208, 222

information scheme, 36, 147, 199, 209, 213 legislation, 69, 75n8, 90–94, 107, 158, 159, 164, 167n11, 192, 205, 213, 214 reform, 14, 21–42, 147, 151, 152, 166, 168, 198, 202, 224 tragedies, 4 Bail Act 1977 (Vic), 90n1, 91 Bail Act 2013 (NSW), 90n1 Bail conditions curfew, 30, 66, 74, 83, 85, 98, 124, 125, 127, 128 place restriction, 131, 142 supervision, 11, 37, 156, 222 Beccaria, C., 23, 221 Bethlehem House, 181, 207, 208 Bond system (USA), 12, 152

 Note: Page numbers followed by ‘n’ refer to notes.

1

© The Author(s) 2020 M. Travers et al., Rethinking Bail, https://doi.org/10.1007/978-3-030-44881-3

237

238 Index

Bourke Street rampage, 7n4, 11, 93, 105, 159, 166, 210 Brain injury, 119, 131, 184–185 Burden of proof, 90, 92–95, 101, 115, 156, 160, 167, 202, 205 Business as usual, 3, 11, 16, 18, 42, 60, 62, 65, 71, 85–86, 112, 175, 196, 213, 217, 220, 222–224 C

Callinan, Ian (Justice), 2 Canada, 33 Case workers, 17, 38, 42, 56, 171, 176, 178, 179n1, 180, 184, 187, 192, 203, 204 Causal analysis, 15, 68 Coghlan, Paul (Justice), 2 Collaborative work, 65 Community Corrections, 30, 37, 98, 105, 140, 148, 182n3, 186, 187 Community ties, 36, 153–156, 165, 204 Conferences (youth justice), 32 Court Integrated Services Program (CISP), 3, 17, 56, 118, 168n12, 171, 173, 174, 176–180, 183, 183n4, 184, 186, 186n5, 186n6, 187, 192n10, 205, 206, 211 Courts court liaison officers, 179 ethnography, 51, 56–58 reform, 17, 61, 71, 195–214 work group, 71–72 Craft skills, 86, 90, 107–112, 165 Crime

increase in, 28, 81 social and psychological causes, 10, 22, 25, 39, 143, 188, 220 Criminal justice system, 1, 3, 13–15, 21, 23, 25–28, 30–34, 38n4, 47n3, 47n4, 51, 60, 104, 119, 135, 137, 153, 177, 183, 195, 198, 202, 210, 211, 213, 218, 219, 221, 222n5 Criminology Research Council, vi, 84 Criminology, 9, 22, 24, 26, 38, 45, 46, 51, 51n8, 60, 139 Critical theorists, 13 Cunneen, Chris, 25, 29–32, 138, 218n3 D

Defence lawyers, 16, 49, 50, 54–56, 61, 65, 67, 69–72, 74, 79, 82–85, 97, 101, 108, 111, 121, 123, 136, 160, 174, 192n10, 218 Defendants drug problems, 61, 94, 118, 187, 192 homeless, 10, 37, 50, 117, 129n4, 132, 137, 173, 174, 181, 203, 219 levels of risk, 154 mentally ill, 10, 134, 219 rights, 6, 9, 115 Department of Community Safety (Victoria), 176 Descriptive statistical findings, 15 Detoxification, 10, 185 Discourse analysis, 52, 54n10

 Index 

Domestic violence, 2, 67, 70, 84, 89, 95, 97, 116, 117, 121, 121n2, 142, 143, 156, 167, 202, 205, 207 DPP, 5 Durkheim, Emile, 24 E

Eaton, Jodi, 2 Electronic tagging (South Australia), 203 Ethics approval, 59 “Exceptional circumstances” test, 104–107, 210, 211 F

Family Violence Act 2004 (Tas), 95, 121n2 Forensic Mental Health Service, 17, 173, 179 Forensic psychologist, 4, 149, 150 Foucault, Michel, 24, 25

239

I

Imprisonment, 3n3, 21–22 over crowding, 198, 218 rising cost, 9 Indigeneity, 16, 118, 137–140 Indigenous imprisonment, 25, 29, 31 Interviewing, 15, 51, 52, 56, 57, 70–72, 74n6, 89, 111, 132n6, 191, 213, 223 J

Judicial officers, 90–92 discretion, 112, 156–157 practices, 2, 26, 32 therapeutic role, 35 Justice Nurses, 179 Justice of the Peace, 67 L

Legitimacy, 148, 166 Legitimate authority, 13 Lindt café siege (DPP), 5 Lombroso, Cesare, 24

G

Gargasoulas, Dimitrious, 1, 7, 11, 67, 104 Garland, David, 10, 25–27, 31, 196 H

Hill, Michael, 202, 214 Home detention (South Australia), 47n2, 69, 80, 174, 203, 221 Homelessness, 116, 119, 129–132, 134, 137, 143, 183, 207 Hulls, Rob, 214

M

Magistrates Early Referral into Treatment (MERIT), 17, 171, 173–176, 180, 185, 206, 213 Manhattan Bail Project, 17, 36, 152–155, 209 Meagher, Jill, 1, 2, 4 Methods mixed methods research, 46 qualitative research, 46, 61 quantitative research, 46–48, 61

240 Index

Mistakes, 2, 4, 41, 50n7, 75, 78, 86, 94, 107, 128, 210, 221 Monis, Man Haron, 1, 2, 5, 6, 11

Prosecutorial practices, 21 Punitiveness, 22, 25, 31, 38n4, 69, 171, 188, 204n6 Punitive turn, 15, 22, 25–31

N

Neo-liberalism, 15, 22, 25–31, 38n4, 198 Net-widening, 190 New institutionalists, 197 New South Wales Law Reform Commission, 12, 46, 48, 48n5 New technologies, 196 Night Court (Victoria), 204 “Nothing works,” 27, 30 O

Organizational change, 11, 168, 195 Outsourcing (pretrial services), 222 P

Parole boards, 2, 4 Philosophies of justice, 32 Policy transfer, 36, 152, 152n3 Political pressures on judiciary, 167 Popovic, Jelena (Victoria), 200, 201, 214, 223n6 Poverty, 16, 25, 116, 135–138 Practical circumstances of work, 4 Presumption in favour of bail, 67 Pretrial services ad hoc, 173, 174, 192 effectiveness, 12, 188 integrated, 121, 192, 195, 204, 218, 220 Procedural fairness, 39 Proportion of unsentenced prisoners, 2, 3

R

Recidivism rates, 12, 41 Rehabilitative ideal, 22 Rehabilitative programs, 3, 10, 32, 143, 151, 155 Reporting to a police station (bail condition), 5 Restorative justice, 15, 21, 32–35, 38, 38n4, 40–42 R v Fisher (Tas), 72n5, 90, 90n1, 91 Rise in remand, 7–9 Risk analysis, 15, 17, 30, 48, 49, 62, 144, 147–149, 151, 152, 154–156, 158, 159, 164–166, 168, 172, 195, 218, 223 Risk assessment “false positives,” 30, 151 racial bias, 151 structured approaches, 150 Risk-needs-responsivity model, 149 S

Salvation Army, 136, 174, 181, 207 Scientific analysis of risk factors, 17 Security guards, 204, 204n6 Sentencing practices, 12 imprisonment, 35, 40, 70n3, 107, 110 Sexual assault, 5 Shadowing, 52, 56–57 Sheriffs (South Australia), 56 “Show cause” test, 93, 160, 205 Social justice, 220–222

 Index 

Social movements theory, 196 Specialist courts drug courts, 32, 35, 39, 40, 129n3, 152n3, 172, 174, 179, 185, 188, 190, 198, 202, 203, 220, 221 mental health courts, 32, 35, 41, 179, 206 State coroner in New South Wales, 2, 5, 6 State of California, 199 Structural inequalities, 16, 58, 116, 117, 134, 142–144, 219 Supreme Court, 68, 77, 125, 202 Surety, 67, 80, 82, 83, 86, 89, 96, 97, 100, 104, 109, 127, 164, 174 T

Tasmanian Law Reform Institute, 12 Therapeutic jurisprudence, 10, 15, 21, 23, 32, 34–35, 40, 42, 152n3, 186–188, 190, 196, 200, 201, 204, 204n7, 221–223, 223n6 Therapeutic justice, 10, 34, 41, 219, 220 Treatment and Intervention Court (South Australia), 203 Triangulation (mixed methods research), 60

241

United States (USA), 3n3, 10–12, 15, 17, 28, 29, 30n1, 31, 32, 35–38, 46, 48, 58, 70, 129n3, 148, 149, 151, 152, 152n3, 152n4, 156, 158, 159, 164–166, 168, 172, 189, 192, 198, 199, 214, 218, 221, 223 V

Variables (quantitative research), 54 VERA Institute, 153 Victoria, 2, 7, 7n4, 8, 13, 17, 36, 38, 40, 42, 47n3, 48n5, 50n6, 55, 56, 66, 67n1, 72, 89–91, 93, 94, 101, 104–107, 112, 118, 125, 136, 139, 143, 168n12, 171, 173, 174, 176–180, 182, 183, 186, 189, 196, 200, 204–205, 205n9, 214, 217n1, 219–222 Vulnerabilities individual, 16, 116, 117, 119, 134, 143, 144 structural, 16, 116, 137, 142, 143, 219 W

U

Unfairness (bail decision-making), 17, 107, 165, 192 United Kingdom (UK), 12, 34, 36–38, 48, 72, 148, 156, 157, 173

Wacquant, Lois, 13, 25, 28, 29, 30n1, 31, 219n4, 220 Warrant, 79, 80, 83, 99, 101, 107, 123 Welfare-oriented court, 10n6, 15, 21, 22, 32, 213n10