Abstract
Vulnerability is a widely used but contentious concept used by welfare practitioners 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 indicates 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, indigeneity and poverty.
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Notes
- 1.
For a powerful account of a recent death in custody, see Klippmark and Crawley (2018).
- 2.
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.
- 3.
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.
- 5.
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.
- 6.
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.
- 7.
We are using the term “Indigenous” to include both Aboriginal and Torres Strait peoples.
- 8.
We hope that this section demonstrates more than a token engagement with this urgent political issue.
- 9.
In 2009, Indigenous Australians were 2.5% of the national population, but made up 26% of the prison population (Weatherburn 2014, p. 1).
- 10.
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).
- 11.
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.
- 12.
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Travers, M., Colvin, E., Bartkowiak-Théron, I., Sarre, R., Day, A., Bond, C. (2020). Defendants with Vulnerabilities. In: Rethinking Bail. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-44881-3_6
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