Abstract
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 those with progressive views support a return to the presumption of innocence, 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 most countries. 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.
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Notes
- 1.
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.
- 2.
Measured as the proportion of remand prisoners in the overall prison population.
- 3.
- 4.
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).
- 5.
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.
- 6.
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.
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Travers, M., Colvin, E., Bartkowiak-Théron, I., Sarre, R., Day, A., Bond, C. (2020). Conclusion: Rethinking Bail. In: Rethinking Bail. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-44881-3_10
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