tag:theconversation.com,2011:/es/topics/bail-11333/articlesBail – The Conversation2023-08-25T12:29:18Ztag:theconversation.com,2011:article/2121792023-08-25T12:29:18Z2023-08-25T12:29:18ZTrump out on bail – a criminal justice expert explains the system of cash bail<figure><img src="https://images.theconversation.com/files/544689/original/file-20230825-17-ifz7r5.jpg?ixlib=rb-1.1.0&rect=0%2C2%2C1486%2C1486&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Donald Trump poses for his booking photo on August 24, 2023, in Atlanta.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/in-this-handout-provided-by-the-fulton-county-sheriffs-news-photo/1621335357?adppopup=true">Fulton County Sheriff's Office via Getty Images</a></span></figcaption></figure><p><em>For several days, former President Donald Trump and his 18 co-defendants in a Georgia election interference case <a href="https://www.cbsnews.com/news/trump-fulton-county-georgia-case-co-defendants-surrendering-scott-hall/">trickled into the Fulton County Jail in Atlanta</a> to surrender for arrest, fingerprinting and mugshots before the noon Aug. 25, 2023, deadline. <a href="https://www.nbcnews.com/politics/donald-trump/trump-indicted-georgia-racketeering-rcna74912">Charged in the same alleged conspiracy</a> to overturn results in Georgia’s 2020 presidential election, the defendants did not draw the same bail agreements or amounts.</em></p>
<p><em><a href="https://www.fultonclerk.org/DocumentCenter/View/2095/DONALD-TRUMP-CONSENT-ORDER">Trump’s bail was set at US$200,000</a>, while his former attorney <a href="https://www.fultonclerk.org/DocumentCenter/View/2111/RUDOLPH-GIULIANI-CONSENT-ORDER">Rudy Giuliani’s bail was set at $150,000</a>. Meanwhile, attorneys <a href="https://www.fultonclerk.org/DocumentCenter/View/2093/JOHN-EASTMAN-CONSENT-ORDER-08-21-2023-133335-39118349-5AF3E310-5875-435A-953C-A7BA04242C0B">John Eastman</a>, <a href="https://www.fultonclerk.org/DocumentCenter/View/2096/KENNETH-CHESEBORO-CONSENT-ORDER">Kenneth Chesebro</a>, <a href="https://www.fultonclerk.org/DocumentCenter/View/2102/JENNA-ELLIS-CONSENT-ORDER">Jenna Ellis</a> and <a href="https://www.fultonclerk.org/DocumentCenter/View/2109/SIDNEY-POWELL-CONSENT-ORDER">Sidney Powell</a> each had bail set at $100,000. Bail for other co-defendants ranged from <a href="https://www.fultonclerk.org/DocumentCenter/View/2110/MISTY-HAMPTON-CONSENT-ORDER">$10,000</a> to <a href="https://www.fultonclerk.org/DocumentCenter/View/2101/CATHLEEN-LATHAM-CONSENT-ORDER">$75,000</a>.</em></p>
<p><em>The Conversation asked <a href="https://scholar.google.com/citations?hl=en&user=nZotFpIAAAAJ">Megan T. Stevenson</a>, a University of Virginia law professor who <a href="https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2420348">researches bail</a>, to answer questions about the American bail system and how the bail amounts in the Georgia election interference case reflect that system.</em></p>
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<a href="https://images.theconversation.com/files/544448/original/file-20230824-19-y741j5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A balding man in a blue suit jacket and blue and red tie stares into the camera." src="https://images.theconversation.com/files/544448/original/file-20230824-19-y741j5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/544448/original/file-20230824-19-y741j5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/544448/original/file-20230824-19-y741j5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/544448/original/file-20230824-19-y741j5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/544448/original/file-20230824-19-y741j5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/544448/original/file-20230824-19-y741j5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/544448/original/file-20230824-19-y741j5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Rudy Giuliani, a former personal lawyer of former President Donald Trump, poses for his booking photo on Aug. 23, 2023, in Atlanta.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/in-this-handout-provided-by-the-fulton-county-sheriffs-news-photo/1619649891?adppopup=true">Fulton County Sheriff's Office via Getty Images</a></span>
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<h2>What is the purpose of the cash bail system, and how does it work?</h2>
<p>Cash bail is when the defendant must pay money before being released from jail after arrest. The money can come from the defendant’s savings, from a friend or family member, or be borrowed from a bail bondsman. The words bail and bond are often used interchangeably.</p>
<p>The idea behind cash bail is that it provides a <a href="https://www.doi.org/10.1257/app.20210349">financial incentive</a> to deter misconduct. If a defendant flees or otherwise misbehaves, they forfeit their bail amount. </p>
<p>After someone is arrested, they are seen by a judge or magistrate who <a href="https://law.asu.edu/sites/default/files/pdf/academy_for_justice/2_Reforming-Criminal-Justice_Vol_3_Pretrial-Detention-and-Bail.pdf">sets bail</a>. The bail hearing is usually exceedingly short – a few minutes at most. Sometimes, the hearings happen by video conference. </p>
<p>Most defendants do not have defense counsel at the time of the bail hearing, but if they do, the defense counsel can argue for lenient bail amounts and conditions.</p>
<p>While bail laws vary from state to state, bail is usually supposed to be set at the minimal amount of money that will ensure the defendant appears in court and doesn’t violate court orders. For instance, one of the conditions of Trump’s bail is that <a href="https://www.usnews.com/news/national-news/articles/2023-08-21/trumps-release-conditions-200-000-bond-social-media-restrictions">he cannot intimidate witnesses, co-defendants or other people</a> – including on social media. If Trump violates this condition, he is at risk of having <a href="https://www.fultoncourt.org/pretrial-faq">his bond revoked</a> and being placed in jail. </p>
<h2>What’s the history of bail in the US?</h2>
<p>Bail has been a part of the American criminal justice system since Colonial times. Originally, when a criminal defendant was <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4367646%22">released on bail</a>, it meant they were released into the supervision of someone who had vouched for them. The defendant would be required to pay a certain amount of money if they failed to subsequently appear in court. But no one needed to pay any money up front. Over time, that has changed. Now, most defendants are expected to pay cash bail before they are released, and <a href="https://chicagounbound.uchicago.edu/uclrev/vol88/iss6/1/">a surety</a> – a person who vouchers for the defendant and promises to supervise them – is generally not required.</p>
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<a href="https://images.theconversation.com/files/544432/original/file-20230824-23-4zjb62.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A gray-haired man looks into the camera." src="https://images.theconversation.com/files/544432/original/file-20230824-23-4zjb62.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/544432/original/file-20230824-23-4zjb62.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=667&fit=crop&dpr=1 600w, https://images.theconversation.com/files/544432/original/file-20230824-23-4zjb62.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=667&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/544432/original/file-20230824-23-4zjb62.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=667&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/544432/original/file-20230824-23-4zjb62.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=838&fit=crop&dpr=1 754w, https://images.theconversation.com/files/544432/original/file-20230824-23-4zjb62.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=838&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/544432/original/file-20230824-23-4zjb62.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=838&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">John Eastman, a former lawyer to former President Donald Trump, poses for his booking photo on Aug. 22, 2023, in Atlanta.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/in-this-handout-provided-by-the-fulton-county-sheriffs-news-photo/1632749696?adppopup=true">Fulton County Sheriff's Office via Getty Images</a></span>
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<h2>Some criminal justice reformers have objected to the cash bail system. Why is that?</h2>
<p>In the U.S., people are presumed innocent until proved guilty in court. Being jailed prior to trial is supposed to be a <a href="https://supreme.justia.com/cases/federal/us/481/739/">“carefully limited exception”</a> as established by Supreme Court precedent.</p>
<p>But that reflects theory better than practice. Approximately 20% of the imprisoned population in the U.S. <a href="https://law.asu.edu/sites/default/files/pdf/academy_for_justice/2_Reforming-Criminal-Justice_Vol_3_Pretrial-Detention-and-Bail.pdf">consists of people awaiting trial</a>. </p>
<p>For reference, there are more people detained pretrial than are serving time due to a drug sentence. And almost all of those detained had cash bail set and would have been released if they could afford it. </p>
<p>Some detained people are facing very serious charges and had very high bail. But <a href="https://law.asu.edu/sites/default/files/pdf/academy_for_justice/2_Reforming-Criminal-Justice_Vol_3_Pretrial-Detention-and-Bail.pdf">many are detained</a> on relatively low bail amounts that are simply beyond reach for the poor to pay. </p>
<p>Theoretically, the <a href="https://law.asu.edu/sites/default/files/pdf/academy_for_justice/2_Reforming-Criminal-Justice_Vol_3_Pretrial-Detention-and-Bail.pdf">ability to pay bail </a> is supposed to be taken into account, but judges frequently don’t. The result is that people end up behind bars before trial simply because they are accused of a crime and they are poor, which is both a <a href="https://dx.doi.org/10.2139/ssrn.3321248">violation of equal protection</a> and a waste of taxpayer resources.</p>
<p>The <a href="https://www.nbcnews.com/specials/bail-reform/">bail reform movement</a> is trying to ensure that the only people detained before trial are people who pose a specific threat of serious crime if they are released. Illinois, for example, <a href="https://www.aclu.org/news/criminal-law-reform/the-illinois-supreme-court-cash-bail-ruling-explained">eliminated its cash bail system</a>, making all defendants eligible for release before trial. In other jurisdictions, <a href="https://theconversation.com/what-are-bail-funds-two-social-policy-experts-explain-182631">nonprofit bail funds</a> pay bail for the poor, with the goal of ensuring that nobody is jailed due to inability to pay.</p>
<h2>Is it customary for people who are charged with the same crime to get different bail amounts?</h2>
<p>Yes. Trump and his co-defendants have been charged in a conspiracy. But conspiracy law is very sweeping and can range from central players in the crime to those with very minor roles. When setting bail, judges take into account the seriousness of the alleged criminal activity, the criminal record and any other information that pertains to the likelihood that the defendant will flee, intimidate witnesses or commit a new crime. Given the wide variety of roles Trump and his co-defendants allegedly played, as well as these other varying circumstances, it’s not surprising that their bail would differ. </p>
<h2>Is there research that examines whether bail is granted to demographic groups differently?</h2>
<p><a href="https://doi.org/10.1093/qje/qjy012">Studies show that racial bias</a> and racial disparities in bail exist, and they arise from various sources. First, a defendant’s criminal record plays a big role in the bail amount. If defendants from disadvantaged groups are more likely to be arrested than others who have committed the same crime, then they <a href="https://www.yalelawjournal.org/article/bias-in-bias-out">will have longer criminal records</a> and will get higher bail amounts. For instance, numerous studies show that Black people use and sell drugs at similar rates to white people, but are <a href="https://www.unodc.org/documents/ungass2016/Contributions/Civil/DrugPolicyAlliance/DPA_Fact_Sheet_Drug_War_Mass_Incarceration_and_Race_June2015.pdf">much more likely</a> to be arrested and convicted for drug crimes. So, Black people in the criminal justice system often have longer criminal records than white people in the system.</p>
<p>Also, a judge’s beliefs about the likelihood that someone will commit a crime in the future can be influenced by stereotypes about race and criminality. These stereotypes can lead a judge to <a href="https://doi.org/10.1093/qje/qjy012">set bail higher</a> for Black defendants who pose the same risk level as white defendants. </p>
<p>Finally, poor people will be less able to afford a certain bail amount than those with greater wealth. And since poverty is strongly correlated with race, Black and Hispanic defendants are often detained at disproportionate rates.</p>
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<a href="https://images.theconversation.com/files/544452/original/file-20230824-29-yb2bf6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman with long brown hair, wearing a dark suit jacket and white top smiles for the camera." src="https://images.theconversation.com/files/544452/original/file-20230824-29-yb2bf6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/544452/original/file-20230824-29-yb2bf6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/544452/original/file-20230824-29-yb2bf6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/544452/original/file-20230824-29-yb2bf6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/544452/original/file-20230824-29-yb2bf6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/544452/original/file-20230824-29-yb2bf6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/544452/original/file-20230824-29-yb2bf6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Jenna Ellis, a former attorney for former President Donald Trump, smiles for her booking photo on Aug. 23, 2023, in Atlanta.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/in-this-handout-provided-by-the-fulton-county-sheriffs-news-photo/1619649699?adppopup=true">Fulton County Sheriff's Office via Getty Images</a></span>
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<p class="fine-print"><em><span>Megan T. Stevenson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>One by one, former President Donald Trump and his 18 co-defendants in the Georgia presidential election interference case turned themselves in for arrest at the Fulton County Jail in Atlanta.Megan T. Stevenson, Professor of Law, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2106942023-08-16T02:50:54Z2023-08-16T02:50:54Z3 ways the Victorian government’s bail reforms fall short – and why it must embrace ‘Poccum’s Law’<p><em>Aboriginal and Torres Strait Islander readers are advised this article contains the name and image of a deceased person.</em></p>
<p>The bail reform bill <a href="https://www.legislation.vic.gov.au/bills/bail-amendment-bill-2023">tabled</a> in the Victorian parliament this week seeks to undo some of the worst parts of the Bail Act, which was condemned as a “complete and unmitigated disaster” in the <a href="https://www.coronerscourt.vic.gov.au/sites/default/files/2023-04/COR%202020%200021%20-%20Veronica%20Nelson%20Inquiry%20-%20Form%2037%20-%20Finding%20into%20Death%20with%20Inquest%20-%2030%20January%202023%20-%20Amended%20%281%29.pdf">coronial inquest</a> into the passing of Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman Veronica Nelson in 2020. </p>
<p>The proposed bail changes have come about because of the tireless advocacy of Nelson’s family. </p>
<p>However, the bill <a href="https://www.vals.org.au/victorian-governments-bail-bill-is-a-good-first-step-but-can-be-improved/">doesn’t go far enough</a> to address the discriminatory effects of the current bail regime, nor fix the state’s remand crisis.</p>
<h2>The disaster of Victoria’s bail laws</h2>
<p>Bail is a process which allows people accused of crimes to remain in the community, with conditions, until their court matter is finalised. However, the <a href="https://www.unswlawjournal.unsw.edu.au/article/changing-the-rules-on-bail-an-analysis-of-recent-legislative-reforms-in-three-australian-jurisdictions">progressive hardening of Victoria’s bail laws</a> over the past decade has made bail much harder to obtain, giving rise to ballooning rates of people on remand (that is, in prison without having been convicted or sentenced).</p>
<p>Unsentenced people in Victoria now make up <a href="https://www.corrections.vic.gov.au/annual-prisons-statistical-profile">42% of the total prison population</a>, compared to only 18% a decade ago. The proportions are even higher among Aboriginal and Torres Strait Islander people and women. The number of unsentenced Indigenous women entering prison each year has grown by <a href="https://www.corrections.vic.gov.au/annual-prisons-statistical-profile">243% over the past decade</a>.</p>
<p>The negative consequences of remand are significant and can include family separation, trauma, and cycles of homelessness, unemployment, and reincarceration.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1619933350067568641"}"></div></p>
<p>The human cost of the state’s toughened bail regime was put in the spotlight by the cruel and preventable <a href="https://www.theage.com.au/politics/victoria/bail-reforms-aimed-at-fixing-disaster-law-face-one-year-wait-20230726-p5drd5.html">death of Veronica Nelson</a> at Dame Phyllis Frost Centre women’s prison in January 2020. She had been arrested and refused bail for shoplifting related offences just three days earlier. Due to changes made to the Bail Act in 2018, she faced a presumption against being granted bail, and was refused bail for this reason.</p>
<p>Following the Coroner’s findings, Veronica’s family and legal experts called for the implementation of “<a href="https://www.vals.org.au/wp-content/uploads/2023/03/Poccums-Law.pdf">Poccum’s Law</a>”, after the nickname for Veronica by her mother, Aunty Donna Nelson.</p>
<p>Poccum’s Law provides a best practice, evidence-based model for bail reform which would have prevented Veronica’s death in custody.</p>
<p>However, the bail reform bill put forward by the government this week falls short of this call. </p>
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Read more:
<a href="https://theconversation.com/number-of-women-on-remand-in-victoria-soars-due-to-outdated-bail-laws-165301">Number of women on remand in Victoria soars due to outdated bail laws</a>
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<h2>3 ways the bill falls short</h2>
<p>There are three major aspects of the bill which legal and health experts say undermine real progress.</p>
<p><strong>1.</strong> First, bail reforms wouldn’t be implemented until six months after passing parliament. This would mean the changes would come into effect in early 2024, which is over four years after Veronica Nelson’s passing, and over 12 months after the Coroner recommended urgent and sweeping reforms to the laws.</p>
<p>After the tragic Bourke Street incident in January 2017, Premier Daniel Andrews acted rapidly to implement <a href="https://www.abc.net.au/news/2017-01-23/bourke-st-rampage-prompts-bail-law-review-in-victoria/8202300">changes to bail laws</a> to create a presumption against bail for a large number of offences, including many minor offences. In doing so, he <a href="https://www.theguardian.com/australia-news/2017/jan/25/delaying-tragedy-the-bourke-street-deaths-and-the-push-to-change-victorias-bail-laws">ignored the advice of experts</a>, who warned the changes would have devastating consequences for already disadvantaged people.</p>
<p>There’s no clear reason for the government to now delay implementation of laws which would curb Victoria’s inflated prison population and prevent the needless harm and suffering caused by large numbers of people cycling through prison unsentenced.</p>
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<em>
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Read more:
<a href="https://theconversation.com/victorias-prison-health-care-system-should-match-community-health-care-180558">Victoria’s prison health care system should match community health care</a>
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<p><strong>2.</strong> Second, the bill doesn’t change the unacceptable risk test enough to ensure that people who pose no risk to community safety aren’t held in prison. Poccum’s Law requires that a person is only refused bail where they pose an immediate and identifiable risk to the safety of another person, serious risk of interfering with a witness, or a demonstrable risk of fleeing the jurisdiction. </p>
<p>The bill retains the power for magistrates to refuse bail where there’s only a risk that a person will not attend court or meet strict bail conditions. Retaining this power won’t address the discriminatory effects of bail laws, since people experiencing significant social disadvantage – such as people who are homeless, <a href="https://www.crimejusticejournal.com/article/view/1882">victim-survivors of family violence</a>, or people with disability – are less likely to be able to comply with onerous bail conditions. </p>
<p>What’s more, Poccum’s Law specifies that a person must not be refused bail if they would be unlikely to receive a sentence of imprisonment. <a href="https://www.corrections.vic.gov.au/annual-prisons-statistical-profile">Half of those discharged from prison</a> have not spent any time under sentence. The bill won’t properly prevent this, which means people will continue to needlessly “<a href="https://journals.sagepub.com/doi/abs/10.1177/1462474520967566">churn</a>” through the prison system.</p>
<p><strong>3.</strong> Finally, the bill doesn’t remove the presumption against bail for all offences. A presumption against bail means the accused person, who hasn’t been found guilty of any crime, has to demonstrate they should be granted bail. </p>
<p>Depriving someone of their liberty is one of the most serious restrictions that can be imposed on a person’s human rights. The presumption against bail <a href="https://academic.oup.com/bjc/article/57/3/664/2623968">erodes the presumption of innocence</a>, and should be repealed in its entirety.</p>
<p>Instead, the onus should be on the prosecutor to persuade the court an accused person shouldn’t be granted bail. This aligns with the <a href="https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CAT%2fC%2fAUS%2fCO%2f6&Lang=en">UN Committee against Torture’s</a> recommendation that remand be “resorted to only in exceptional circumstances” and the <a href="https://openresearch-repository.anu.edu.au/bitstream/1885/229826/2/WP_140_Anthony_et_al_2021.pdf">continued calls</a> to properly implement the findings of the Royal Commission into Aboriginal Deaths in Custody.</p>
<p>Half-hearted bail reforms can only lead to more suffering and harm. The government ought to listen to the family of Veronica Nelson and the expertise of the 56 Aboriginal, legal, human rights and health organisations that have endorsed Poccum’s Law.</p><img src="https://counter.theconversation.com/content/210694/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Emma Russell is a Visiting Scholar at the Centre for Crime Law and Justice at University of New South Wales. She is affiliated with Smart Justice for Women. </span></em></p><p class="fine-print"><em><span>Andreea Lachsz was the Head of Policy, Communications and Strategy at the Victorian Aboriginal Legal Service during the Inquest into the passing of Veronica Nelson.</span></em></p><p class="fine-print"><em><span>Sarah Schwartz is the Principal Lawyer of the Wirraway Practice at the Victorian Aboriginal Legal Service and acted in the Inquest into the passing of Veronica Nelson.</span></em></p>Poccum’s Law provides a best practice, evidence-based model for bail reform which would have prevented Veronica Nelson’s death in custody.Emma Russell, Senior Lecturer in Crime, Justice & Legal Studies, La Trobe UniversityAndreea Lachsz, PhD Candidate, University of Technology SydneySarah Schwartz, Lecturer, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2019432023-04-05T18:37:41Z2023-04-05T18:37:41ZRace is closely tied to who gets bail — that’s why we must tread carefully on bail reform<figure><img src="https://images.theconversation.com/files/518504/original/file-20230330-19-cy6f02.JPG?ixlib=rb-1.1.0&rect=0%2C0%2C5009%2C3681&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Alberta Justice Minister Tyler Shandro speaks during a Federal-Provincial-Territorial Ministers' meeting on bail reform in Ottawa in March 2023. </span> <span class="attribution"><span class="source">THE CANADIAN PRESS/Spencer Colby</span></span></figcaption></figure><iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/race-is-closely-tied-to-who-gets-bail-—-that-s-why-we-must-tread-carefully-on-bail-reform" width="100%" height="400"></iframe>
<p>Over four decades ago — on April 17, 1982 — Queen Elizabeth signed the Constitution Act, which included the <a href="https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/">Canadian Charter of Rights and Freedoms</a>. </p>
<p>The Charter enshrined — and therefore placed outside the reach of capricious lawmaking — certain fundamental rights and freedoms guaranteed to all Canadians. The right to reasonable bail is among them. </p>
<p>The right to bail recognizes that the state is constitutionally burdened with establishing an accused person’s guilt before unduly or unjustly denying or abridging their right to liberty, especially <a href="https://www.canlii.org/en/ca/scc/doc/2015/2015scc27/2015scc27.html">in reaction to short-term public outrage.</a> </p>
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<p>Canadians should consider the <a href="https://www.justice.gc.ca/eng/rp-pr/jr/bb-lr/index.html">collateral consequences</a> of pre-trial detention, including job loss, stigmatization, family breakdown and homelessness. Also, <a href="https://www.justice.gc.ca/eng/rp-pr/jr/gp-pc/p5.html">when denied bail, research shows accused people are more likely to enter into rash and ill-advised plea bargains</a> or plead guilty despite having a viable defence. </p>
<p>A disturbing number of inmates <a href="https://www.justice.gc.ca/eng/rp-pr/jr/rib-reb/bail-liberte/index.html">in provincial detention institutions</a> have either been denied bail or are awaiting a bail hearing. These inmates often face <a href="https://www.ohrc.on.ca/en/report-conditions-confinement-toronto-south-detention-centre">egregious prison realities</a>, ranging <a href="https://torontolife.com/city/inside-toronto-south-detention-centre-torontos-1-billion-hellhole/">from draconian lockdown policies</a> to a lack of meaningful access to legal counsel and basic hygiene.</p>
<p>The often overlooked problem with Canada’s bail system is not the laws surrounding bail, per se, but the need to ensure that criminally accused people receive fair access to bail — and that those who receive bail have the necessary opportunities to thrive while they await trial.</p>
<h2>Concerns about bail</h2>
<p>In the aftermath of the shooting <a href="https://barrie.ctvnews.ca/judge-who-released-man-later-charged-in-cop-s-death-weighed-indigenous-background-1.6269168">death of Ontario Provincial Police Const. Grzegorz Pierzchala, allegedly by a young Indigenous man out on bail</a>, <a href="https://www.oppa.ca/Media/Blog/premierslettertopmbailreform">all 13 premiers called on Prime Minister Justin Trudeau to strengthen Canada’s bail system</a>.</p>
<p>In response to their concerns, the <a href="https://www.ourcommons.ca/Committees/en/JUST/StudyActivity?studyActivityId=12025820">Parliamentary standing committee on justice and human rights</a> is currently studying the bail system.</p>
<figure class="align-center ">
<img alt="Pallbearers carry a coffin draped with a mostly red flag past a large group of mourners." src="https://images.theconversation.com/files/518481/original/file-20230330-18-mxr1j2.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/518481/original/file-20230330-18-mxr1j2.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/518481/original/file-20230330-18-mxr1j2.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/518481/original/file-20230330-18-mxr1j2.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/518481/original/file-20230330-18-mxr1j2.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/518481/original/file-20230330-18-mxr1j2.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/518481/original/file-20230330-18-mxr1j2.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Pallbearers carry the casket of OPP Const. Grzegorz Pierzchala after his funeral service at the Sadlon Arena in Barrie, Ont., in January 2023.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Frank Gunn</span></span>
</figcaption>
</figure>
<p>Bail is often regarded by accused people and their lawyers to be an act of judicial and prosecutorial benevolence or leniency. But it’s increasingly used as <a href="https://tspace.library.utoronto.ca/handle/1807/80896">a proxy for punishment</a>, advancing tough-on-crime political agendas and stirring up hysteria around public safety.</p>
<p>Canadians must be mindful of political rhetoric around bail reform and instead closely consider the negative implications that a “tougher” bail system has on constitutional rights and the lives of marginalized and racialized accused people. </p>
<p>In fact, the Supreme Court of Canada <a href="https://www.canlii.org/en/ca/scc/doc/1992/1992canlii52/1992canlii52.html">has warned lower courts to avoid relying on factors extraneous to the bail system in determining who gets bail</a>. These factors can take the form of <a href="https://doi.org/10.1086/449256">entrenched attitudes around race and risk</a>. </p>
<p>How we come to know and construct risk and, more importantly, how risk is often associated with race are all salient questions that require careful examination.</p>
<h2>‘The evil of racism’</h2>
<p><a href="https://bfi.uchicago.edu/wp-content/uploads/BFI_WP_2020331.pdf">The relationship between risk construction and apportionment of blame is closely tied to race</a>. <a href="https://doi.org/10.3138/9781442687554">Scholars have even argued</a> that discussions on risk prevention — and I would add risk management and mitigation — cannot be separated from race.</p>
<p>That means those considering who gets bail <a href="https://www.huffpost.com/archive/ca/entry/we-must-address-the-racial-disparities-in-bail-decisions_b_14368242">must reflect on their own beliefs and show restraint</a> as they determine risk to avoid relying on false racist narratives — for example, that Black and Indigenous people are dangerous and risk-prone.</p>
<p>Thirty years ago, Ontario’s Court of Appeal observed in <a href="https://www.canlii.org/en/on/onca/doc/1993/1993canlii3383/1993canlii3383.html?autocompleteStr=r.%20v.%20parks%20&autocompletePos=2"><em>R v Parks</em></a> that examined the manslaughter conviction of a Black drug dealer accused of killing a white drug user: </p>
<blockquote>
<p>“Racism, and in particular anti-Black racism, is a part of our community’s psyche… Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes. These elements combine to infect our society as a whole with the evil of racism. Blacks are among the primary victims of that evil.”</p>
</blockquote>
<p>Unfortunately, <a href="https://johnhoward.ca/blog/race-crime-justice-canada/">voluminous social science research</a> suggests this observation is as relevant today as it was three decades ago. The data also suggests that institutionalized racism, particularly within the criminal justice system, is difficult, if not impossible, to remedy. </p>
<p>However, to the Supreme Court of Canada’s credit, recent bail decisions like <a href="https://www.canlii.org/en/ca/scc/doc/2017/2017scc27/2017scc27.html?autocompleteStr=antic&autocompletePos=1"><em>R v Antic</em></a> have signalled to bail jurists, Crown prosecutors and lawmakers to take a less punitive and carceral approach to bail. </p>
<p>In this case — involving a Windsor, Ont., man charged with drug and firearms offences and denied bail — the court emphasized the importance of ensuring imprisonment is used as a last resort. </p>
<p>It ruled he was erroneously denied bail, reinforcing that accused people are constitutionally presumed innocent and should benefit from a constitutional right to bail — and that there is a constitutional right not to be denied bail without just cause. </p>
<figure class="align-center ">
<img alt="Shadows of tree limbs on the snow are seen in front of a stone court house." src="https://images.theconversation.com/files/518508/original/file-20230330-14-3g1di1.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/518508/original/file-20230330-14-3g1di1.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/518508/original/file-20230330-14-3g1di1.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/518508/original/file-20230330-14-3g1di1.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/518508/original/file-20230330-14-3g1di1.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/518508/original/file-20230330-14-3g1di1.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/518508/original/file-20230330-14-3g1di1.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Supreme Court of Canada is pictured in Ottawa in March 2023.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Sean Kilpatrick</span></span>
</figcaption>
</figure>
<h2>Other Supreme Court decisions</h2>
<p>In fact, for years, at least since the Supreme Court’s 1992 decision in <a href="https://www.canlii.org/en/ca/scc/doc/1992/1992canlii52/1992canlii52.html?autocompleteStr=pearson&autocompletePos=1"><em>R v Pearson</em>,</a> the constitutionality of reverse onus provisions have been discussed. </p>
<p>In a reverse onus situation, it’s presumed that accused people should be detained while awaiting trial unless they can demonstrate to the court that there’s no just cause for their detention.</p>
<p>The <em>Pearson</em> ruling involved the case of a convicted drug trafficker. It established that while reverse onus provisions are an affront to the constitutional rights of Canadians, they can be enabled by Sec. 1 of the Charter, which guarantees rights and freedoms subject <a href="https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art1.html">“only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”</a></p>
<p>Nonetheless, a less punitive and carceral approach to bail is wise — any erosion of Canadians’ constitutional rights threatens the integrity and the long-term repute of the justice system. </p>
<p>The Supreme Court is seeking to balance the liberty of those accused of crimes and other constitutional rights — for example, the presumption of innocence and the right to reasonable bail — with the concern about the risk accused people may pose to public safety.</p>
<p>But despite its careful interpretations, bail remains a highly political and legally charged process in terms of public perceptions.</p><img src="https://counter.theconversation.com/content/201943/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Danardo Jones does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Those determining bail must reflect on their own beliefs and show restraint as they determine risk to avoid relying on false racist narratives. So should those calling for bail reform.Danardo Jones, Assistant Professor of Law, University of WindsorLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1985072023-01-30T04:50:37Z2023-01-30T04:50:37Z‘Discriminatory impact on First Nations people’: coroner calls for urgent bail reform in Veronica Nelson inquest<figure><img src="https://images.theconversation.com/files/506976/original/file-20230130-217-ape5bb.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C5139%2C3423&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Indigenous community members outside the Victorian coroners court ahead of the release of a report into the death of Veronica Nelson.</span> <span class="attribution"><span class="source">Tamati Smith/Getty Images</span></span></figcaption></figure><p><strong><em>Aboriginal and Torres Strait Islander readers are advised this article contains names and/or images of deceased people.</em></strong></p>
<p>A Victorian coroner has called for swift reform of bail laws when <a href="https://www.theage.com.au/national/victoria/watch-coroner-hands-down-findings-into-death-of-veronica-nelson-20230127-p5cfy1.html">handing down his findings</a> into the death of 37-year-old Aboriginal woman Veronica Nelson. </p>
<p>Nelson was suffering from an undiagnosed medical condition when she was arrested on suspicion of shoplifting and alleged breach of bail in January 2020. She was later found dead in her cell at the <a href="https://www.corrections.vic.gov.au/prisons/dame-phyllis-frost-centre">Dame Phyllis Frost Centre</a>, despite using the intercom system about 40 times to alert staff to her deteriorating condition.</p>
<p>Coroner Simon McGregor found “cruel” and “degrading” treatment of Nelson caused her preventable death. Of the system, he said</p>
<blockquote>
<p>A person in custody is not only deprived of their liberty [but also] deprived of the ability and resources to care for themselves. In short, the state’s control over the person is nearly complete.</p>
<p>[…] I find that the Bail Act has a discriminatory impact on First Nations people, resulting in grossly disproportionate rates of [First Nations people] remanded in custody, the most egregious of which affects alleged offenders who are Aboriginal and or Torres Strait Islander women.</p>
</blockquote>
<p>McGregor found the bail decision-maker in Victoria Police failed to consider Nelson’s vulnerability, a provision afforded her under current bail legislation and the <a href="https://www.humanrights.vic.gov.au/legal-and-policy/victorias-human-rights-laws/the-charter/">Victorian Charter of Human Rights and Responsibilities</a>.</p>
<p>In his report, McGregor also makes adverse findings against the custodial healthcare provider, Correct Care Australasia (CCA). He found Nelson’s death could have been prevented if CCA staff had provided adequate medical screening and recommended hospitalisation. Instead, she was sent from the prison’s health centre to a cell, where she died.</p>
<p>McGregor <a href="https://www.theage.com.au/national/victoria/watch-coroner-hands-down-findings-into-death-of-veronica-nelson-20230127-p5cfy1.html">has referred CCA</a> to the Director of Public Prosecutions, who may consider charges for breaching relevant health and safety laws.</p>
<p>The Andrews government <a href="https://www.theage.com.au/national/victoria/cruel-and-inhumane-coroner-s-urgent-demand-on-bail-reform-20230123-p5cesq.html">has not renewed its contracts with CCA</a>. </p>
<p>Corrections Victoria (CV) doesn’t escape McGregor’s excoriation. The coroner said the actions of CV employees and their inadequate processes led to a failure to provide appropriate healthcare to Nelson.</p>
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<h2>The legacy of tough bail laws</h2>
<p>We need to understand Nelson’s death in the broader context of reforms that have made it less likely that people charged with an offence – who are all entitled to the presumption of innocence, until proven guilty – will receive bail. Put simply, they are now more likely than ever before to be remanded in custody, as Nelson was. </p>
<p>The decision to bail a person accused of an offence has been progressively restricted across Australia. As a result, the number and proportion of prisoners who have yet to be convicted and sentenced has jumped significantly. <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/corrective-services-australia/latest-release">Since 2017</a>, the number of people in prison who are unsentenced has risen 17%, and almost four in ten prisoners in Australia today are unsentenced. </p>
<p>Current bail regimes often require a defendant to demonstrate a “compelling reason” why bail should be granted, reversing a system where bail is presumed unless there are good reasons to deny it.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/number-of-women-on-remand-in-victoria-soars-due-to-outdated-bail-laws-165301">Number of women on remand in Victoria soars due to outdated bail laws</a>
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<p>Restrictive bail laws have been expanded in each jurisdiction across Australia. This is particularly the case in Victoria, where the laws were tightened after the <a href="https://www.abc.net.au/news/2019-11-19/bourke-street-driver-james-gargasoulas-nearly-handed-himself-in/11716892">Bourke Street murders in January 2017</a>. The killer, James Gargasoulas, had already breached bail <a href="https://www.abc.net.au/news/2019-11-25/bourke-street-inquest-hears-bail-justice-who-bailed-gargasoulas/11733788">eight times</a> when he was again granted bail a week before his rampage. </p>
<p>The changes that followed were designed to keep repeat violent offenders out of the community. However, they have led to the incarceration of large numbers of Victorians, many charged with less serious offences. According to Australian Bureau of Statistics data, over the past decade, the unsentenced imprisonment rate <a href="https://www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/4512.0September%20quarter%202017?OpenDocument">in Victoria</a> has increased by 210%. Notably, <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/prisoners-australia/latest-release">56% of women in prison</a> in Victoria are unsentenced, compared with 42% of men.</p>
<p>What’s more, <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/prisoners-australia/latest-release">51% of Indigenous people</a> in Victorian prisons are unsentenced, compared with 42% of non-Indigenous people. This is a shameful statistic that reflects once again the <a href="https://theconversation.com/factcheck-are-first-australians-the-most-imprisoned-people-on-earth-78528">dramatic over-representation of First Nations people in the justice system</a>.</p>
<p>In its report on this issue, the <a href="https://www.alrc.gov.au/publication/pathways-to-justice-inquiry-into-the-incarceration-rate-of-aboriginal-and-torres-strait-islander-peoples-alrc-report-133/">Australian Law Reform Commission</a> found Indigenous people may be disadvantaged when applying for bail due to irregular employment, previous convictions (often for low-level offending) and a lack of secure accommodation.</p>
<p>Even if bail is granted, cultural obligations may conflict with commonly-imposed bail conditions. This can in turn lead to breach of bail and consequent imprisonment. </p>
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<h2>It’s time to rebalance our bail laws</h2>
<p>Strategies to address <a href="https://www.indigenousjustice.gov.au/wp-content/uploads/mp/files/publications/files/the-growth-in-remand-13-08-2.pdf">the growth in remand and Indigenous over-representation</a> include: </p>
<ul>
<li>requiring explicit consideration of Indigenous status in bail decisions (this is already in place in Victoria, but not in most other jurisdictions)</li>
<li>ensuring bail conditions are culturally and socially appropriate</li>
<li>removing breach of bail as an offence</li>
<li>adopting alternative measures for dealing with breach of bail</li>
<li>providing accommodation and other support.<br></li>
</ul>
<p>According to a <a href="https://theconversation.com/giving-ex-prisoners-public-housing-cuts-crime-and-re-incarceration-and-saves-money-180027">range of evidence</a>, investing in such initiatives will make the community safer. For example, <a href="https://www.mcv.vic.gov.au/sites/default/files/2018-10/CISP%20tackling%20the%20causes%20of%20crime.pdf">an evaluation of a Victorian bail support program</a> found it reduced reoffending, and every dollar spent on the program saved the community between $1.70 and $5.90.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/victorias-prison-health-care-system-should-match-community-health-care-180558">Victoria’s prison health care system should match community health care</a>
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<p>The coroner’s report is a clarion call not only for the Andrews government, but all governments. Our correctional focus should ensure the treatment of people remanded in custody respects their basic human rights, protects their dignity and keeps their health needs front of mind. This is especially important for First Nations people and is in line with recommendations from the <a href="https://www.commongrace.org.au/339_recommendations_from_the_rciadic">1991 Royal Commission into Aboriginal Deaths in Custody</a>.</p>
<p>More broadly, governments need to reconsider the framework for making bail decisions. The <a href="https://www.natsils.org.au/">National Aboriginal and Torres Strait Islander Legal Services</a> recently called for all jurisdictions with “<a href="https://nit.com.au/26-01-2023/4820/closing-the-justice-gap-indigenous-legal-peak-body-sets-out-plan-of-action">dangerous and discriminatory bail laws</a>” to repeal those laws and instead create a presumption in favour of bail. </p>
<p>People who have not been convicted shouldn’t be unnecessarily deprived of their liberty. <a href="https://theconversation.com/we-need-to-consider-granting-bail-to-unsentenced-prisoners-to-stop-the-spread-of-coronavirus-134526">Over 160 people</a> enter our adult prisons every day, and over three-quarters of these people are unsentenced. Many <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/criminal-courts-australia/latest-release">won’t be convicted of any offence</a>, and even those who are may not receive a prison sentence. They should certainly not face a death sentence, as Veronica Nelson did.</p><img src="https://counter.theconversation.com/content/198507/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre is affiliated with the Bragg Subbranch of the SA Labor Party. He is a South Australian patron of the Justice Reform Initiative (JRI) and a Fellow of the Australian and New Zealand Society of Criminology (ANZSOC).</span></em></p><p class="fine-print"><em><span>Lorana Bartels receives funding from the ACT Government and Australian Institute of Criminology. She regularly provides advice to the ACT Government on justice issues and is a member of the Tasmanian Sentencing Advisory Council. She is a patron and board director of the Justice Reform Initiative.</span></em></p>Arrested on suspicion of shoplifting and denied bail, Veronica Nelson died alone in a cell. A Victorian coroner has called for urgent reform of the state’s tough bail laws.Rick Sarre, Emeritus Professor of Law and Criminal Justice, University of South AustraliaLorana Bartels, Professor of Criminology, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1975132023-01-18T21:29:08Z2023-01-18T21:29:08Z5 ways to reform Canada’s bail system to benefit both the public and the accused<figure><img src="https://images.theconversation.com/files/504787/original/file-20230116-13-559uvt.JPG?ixlib=rb-1.1.0&rect=0%2C0%2C4081%2C2669&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A man rushes past the Ontario courthouse in Toronto in May 2022. </span> <span class="attribution"><span class="source">THE CANADIAN PRESS/Christopher Katsarov</span></span></figcaption></figure><iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/5-ways-to-reform-canada-s-bail-system-to-benefit-both-the-public-and-the-accused" width="100%" height="400"></iframe>
<p>In the wake of recent high-profile crimes allegedly committed by accused people out on bail, <a href="https://www.cbc.ca/news/canada/hamilton/funeral-opp-const-grzegorz-pierzchala-1.6702283">including the slaying of a police officer in Ontario</a>, police leaders and politicians are calling for a tougher bail system.</p>
<p>Fuelling calls for reform is the accusation that <a href="https://www.ctvnews.ca/canada/are-canadian-bail-rules-tough-enough-experts-weigh-in-after-officer-killed-1.6216708">bail is a “catch-and-release” system</a> that quickly returns people accused of crimes to the community only to see them regularly and wilfully disregarding their release conditions. </p>
<p>Critics believe the rights of the accused are being prioritized over the rights of victims and public safety.</p>
<p>Scholars and legal advocates have likewise denounced the bail system, but for very different reasons. Canadian scholars have demonstrated how bail <a href="https://johnhoward.on.ca/wp-content/uploads/2014/07/JHSO-Reasonable-Bail-report-final.pdf">sets up accused people to fail</a> by imposing unreasonable conditions that entrap individuals in a revolving door of justice. </p>
<p>But is the bail system really broken? If so, how do we fix it? We argue that while the law on bail is sound, its implementation needs improvement. </p>
<h2>Many Canadians don’t understand bail</h2>
<p>Bail legislation reflects fundamental principles outlined in Canada’s <a href="https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art11e.html">Charter of Rights and Freedoms</a> that attempt to balance the rights of accused people — by upholding the presumption of innocence — with public safety and confidence in the criminal justice system. </p>
<p>The law allows for people who are deemed risky to be detained, particularly for certain indictable offences or when confidence in the administration of justice would be undermined by releasing an accused person into the community. </p>
<figure class="align-left ">
<img alt="A man with a goatee in red and white robes." src="https://images.theconversation.com/files/504784/original/file-20230116-12-nru3o5.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/504784/original/file-20230116-12-nru3o5.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/504784/original/file-20230116-12-nru3o5.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/504784/original/file-20230116-12-nru3o5.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/504784/original/file-20230116-12-nru3o5.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/504784/original/file-20230116-12-nru3o5.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/504784/original/file-20230116-12-nru3o5.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Supreme Court Chief Justice Richard Wagner is seen in November 2022.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Sean Kilpatrick</span></span>
</figcaption>
</figure>
<p>For those who are released on bail, most must abide by conditions that restrict who they can associate with, where they can go, what they can do and where they can live. </p>
<p>Legally, however, judges must impose the fewest and least onerous conditions necessary, in adherence with <a href="https://qweri.lexum.com/calegis/rsc-1985-c-c-46-en#!fragment/sec515subsec2">provisions of the country’s Criminal Code</a> and <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16649/index.do">precedent-setting Supreme Court decisions</a>. </p>
<h2>Bail is a rigorous process</h2>
<p>Our ongoing studies on the experience of living with bail conditions present a stark contrast to perceptions of a lenient bail system. </p>
<p>A vast majority of the accused people we have spoken to report taking their conditions seriously and accepting responsibility for their actions while on bail. They believe that the path out of the criminal justice system involves making meaningful changes in their lives.</p>
<p>Bail supervisors similarly attest that bail is a rigorous process. In interviews, they emphasized that bail supervision programs have clear criteria about who they accept into their program. They report that most accused people are committed to, and successfully complete, their bail.</p>
<p>When accused do breach bail, <a href="https://www.justice.gc.ca/eng/rp-pr/jr/jf-pf/2017/oct01.html">98 per cent</a> of charges are related to release conditions rather than new offences. </p>
<p>Recent <a href="https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=3510015401">Statistics Canada data</a> also shows that nearly 80 per cent of people in provincial custody in Ontario were legally innocent, further demonstrating that bail is not a lenient process.</p>
<figure class="align-center ">
<img alt="The inside of a detention centre, with metallic seating areas and green doors and staircases." src="https://images.theconversation.com/files/504785/original/file-20230116-14-27quid.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/504785/original/file-20230116-14-27quid.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=392&fit=crop&dpr=1 600w, https://images.theconversation.com/files/504785/original/file-20230116-14-27quid.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=392&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/504785/original/file-20230116-14-27quid.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=392&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/504785/original/file-20230116-14-27quid.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=493&fit=crop&dpr=1 754w, https://images.theconversation.com/files/504785/original/file-20230116-14-27quid.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=493&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/504785/original/file-20230116-14-27quid.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=493&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The general inmate facility is shown during a media tour of the Toronto South Detention Centre.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Nathan Denette</span></span>
</figcaption>
</figure>
<h2>Inequalities in bail</h2>
<p>Bail can also exacerbate social marginalization and criminalization. The imposition of <a href="https://ccla.org/wp-content/uploads/2021/07/Set-up-to-fail-FINAL.pdf">restrictive and onerous conditions</a> that require residency conditions for those experiencing homelessness, for example, makes completing bail without breaching its conditions more difficult. </p>
<p>While awaiting trial, <a href="https://www.reuters.com/article/canada-us-canada-jails-race-exclusive-idCAKBN1CO2RD-OCADN">Black people in Ontario spend longer in custody</a> than white people, and <a href="https://www.justice.gc.ca/eng/rp-pr/jr/gladue/p2.html">Indigenous people are denied bail more frequently</a> than other accused people. </p>
<p>Time spent in pre-trial custody has <a href="https://www.legalaid.on.ca/documents/a-legal-aid-strategy-for-bail/#section2">negative legal and social implications</a>. Not only does it compel accused people to plead guilty and agree to unreasonable release conditions, it also disrupts employment and familial responsibilities. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/broken-system-why-is-a-quarter-of-canadas-prison-population-indigenous-91562">Broken system: Why is a quarter of Canada's prison population Indigenous?</a>
</strong>
</em>
</p>
<hr>
<h2>5 ways to reform bail</h2>
<p>Focusing bail reform narrowly around “tough-on-crime measures” is unlikely to enhance public safety. Here are five proposals to reform bail:</p>
<ol>
<li><p><strong>Timely bail decisions</strong>. Quick decisions on bail will have two benefits. First, they’ll decrease the likelihood the accused will accrue additional charges, often for non-criminal behaviour, if they breach their conditions. And they’ll also reduce the amount of time accused people spend in the community before serving their sentences. </p></li>
<li><p><strong>Access to community resources.</strong> Homelessness, mental health issues, substance use, addiction and/or trauma are realities that make access to bail, and adhering to bail conditions, extraordinarily challenging. Not knowing where you’re sleeping every night or having an active addiction means compliance becomes an afterthought. </p></li>
<li><p><strong>More funding for enhanced bail supervision programs.</strong> Bail supervision programs are a cost-effective way to monitor accused people with higher risks or needs in the community, and act as vital conduits to desperately needed resources. </p></li>
<li><p><strong>Inter-agency communication.</strong> Increased communication among social service agencies, courts and police will improve the efficiency and effectiveness of bail. </p></li>
<li><p><strong>Systematic collection of bail statistics.</strong> Currently, the statistics on bail are inadequate. Collecting data, and disaggregating it in meaningful categories, is essential for informing evidence-based responses. </p></li>
</ol>
<h2>Probing the causes of crime</h2>
<p>Demands to reform the bail system are understandable in the face of the violent victimization of innocent Canadians. Yet calls solely for punitive responses mask our unwillingness to address the structural causes of crime. </p>
<p>Crown attorneys and judges must clearly continue upholding the law on bail, which requires restraint while also protecting the presumption of innocence and balancing public safety. </p>
<p>But to protect communities, we must also improve the likelihood that accused people can comply with their bail conditions by offering greater support and collaboration on several fronts, from social services to law enforcement.</p><img src="https://counter.theconversation.com/content/197513/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Carolyn Yule receives funding from the Social Sciences and Humanities Research Council. </span></em></p><p class="fine-print"><em><span>Laura MacDiarmid does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>To protect communities, we must improve the likelihood that accused people can comply with their bail conditions by offering greater support on several fronts, from social services to law enforcement.Carolyn Yule, Associate Professor of Sociology, University of GuelphLaura MacDiarmid, Assistant Professor, Justice Studies, University of Guelph-HumberLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1929172022-10-27T12:27:11Z2022-10-27T12:27:11ZCrime is on the ballot – and voters are choosing whether prosecutors with reform agendas are the ones who can best bring law, order and justice<figure><img src="https://images.theconversation.com/files/491754/original/file-20221025-14-uxa41k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">New York police respond to a shooting in Brooklyn in April 2021, amid a rise in shootings that year.</span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/officers-respond-to-the-scene-of-a-shooting-that-left-multiple-people-picture-id1311166076?s=612x612">Michael M. Santiago/Getty Images </a></span></figcaption></figure><p>Different approaches to justice are on the ballot in November 2022 in some <a href="https://boltsmag.org/whats-on-the-ballot/2022-general-election-cheat-sheet/">public prosecutor and Congressional elections</a> around the country, revealing a deep divide about how differently Americans feel about crime and its consequences. </p>
<p>Many Republican Congressional and prosecutor candidates are focusing their electoral messages on crime, accusing Democrats of being <a href="https://www.nytimes.com/2022/09/26/us/politics/republicans-crime-midterms.html">“dangerously liberal”</a>, <a href="https://theconversation.com/republicans-say-crime-is-on-the-rise-what-is-the-crime-rate-and-what-does-it-mean-192900">amid a seeming rise</a> of crime in some places. </p>
<p>They are also <a href="https://www.nytimes.com/2022/09/26/us/politics/republicans-crime-midterms.html">saying that</a> policies backed by Democrats <a href="https://www.vera.org/state-of-justice-reform/2019/bail-reform">like bail reform</a> <a href="https://www.nytimes.com/2021/10/28/nyregion/nassau-da-kaminsky-donnelly.html">threaten public safety</a>. Bail reform allows people who have been charged with a misdemeanor or a nonviolent felony to remain free pending the outcome of their cases, avoiding the scenario where people are held in jail because they are too poor to pay even modest amounts of bail. </p>
<p>The Republican message likely resonates with some voters. </p>
<p>An October 2022 <a href="https://www.politico.com/news/2022/10/05/midterm-voters-crime-guns-00060393">Politico poll</a> showed that voters rank crime as a top area of concern, trailing only the economy and abortion. </p>
<p>Democrats, meanwhile, have responded by <a href="https://www.politico.com/news/2022/06/23/congress-bipartisan-gun-package-00041701">supporting gun safety proposals</a> and pointing to House of Representative bills that they supported and <a href="https://www.nytimes.com/2022/09/22/us/politics/house-passes-police-funding-bills.html">passed in September 2022</a>, giving more money to local police departments. In other cases, Democrat candidates have largely avoided the topic of crime altogether, and instead have kept their focus on other <a href="https://www.politico.com/news/2022/10/03/democrats-congress-house-majority-abortion-00059929">key issues like abortion.</a> </p>
<p>Against this backdrop, some local prosecutors running for election are arguing that public safety and new ways of thinking about incarceration can go hand in hand. </p>
<p>As a scholar who <a href="https://jessicahenryjustice.com/">writes</a> and <a href="https://www.montclair.edu/profilepages/view_profile.php?username=henryj">teaches</a> about criminal justice and <a href="https://www.amazon.com/Smoke-but-No-Fire-Convicting/dp/0520300645">wrongful convictions</a>, I know that top prosecutors have tremendous power when deciding how justice is meted out – what crimes to charge, which people to bring charges against, and how cases are prosecuted. </p>
<p>How they choose to wield that control has significant consequences for poor people, communities of color, victims of crimes and society at large. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/491758/original/file-20221025-11-f0xhgf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A Latino middle aged man wearing a blue suit stands in a modern looking room, with big glass windows, and looks to his left, with his hands in his pockets." src="https://images.theconversation.com/files/491758/original/file-20221025-11-f0xhgf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/491758/original/file-20221025-11-f0xhgf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/491758/original/file-20221025-11-f0xhgf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/491758/original/file-20221025-11-f0xhgf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/491758/original/file-20221025-11-f0xhgf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/491758/original/file-20221025-11-f0xhgf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/491758/original/file-20221025-11-f0xhgf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Jose Garza, district attorney of Travis County, Texas, is one of the progressive prosecutors elected in recent years.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/district-attorney-jose-garza-in-austin-tx-on-thursday-november-18-picture-id1240972549?s=612x612">Spencer Selvidge for The Washington Post via Getty Images</a></span>
</figcaption>
</figure>
<h2>A new way of thinking about justice</h2>
<p>Public prosecutors are government officials who are tasked with investigating and prosecuting crimes. They operate at different levels of government, ranging from state attorneys general – the highest law enforcement officer in state government – to county attorneys. </p>
<p>Prosecutors have <a href="https://www.latimes.com/politics/story/2019-08-02/once-tough-on-crime-prosecutors-now-push-progressive-reforms">traditionally positioned themselves</a> as tough on crime, and measure their success by the number and severity of convictions they oversee. </p>
<p>But after the Black Lives Matter movement intensified around 2016, nontraditional candidates, sometimes called <a href="https://www.themarshallproject.org/records/8469-progressive-prosecutors">progressive prosecutors</a>, <a href="https://www.sfchronicle.com/crime/article/Progressive-DAs-form-new-alliance-to-combat-15569007.php">began running</a> in local elections – and winning office. This followed growing public awareness about law enforcement’s treatment of people of color, and their <a href="https://www.pewresearch.org/fact-tank/2019/04/30/shrinking-gap-between-number-of-blacks-and-whites-in-prison/">disproportionate representation</a> in prisons. </p>
<p>There are roughly <a href="https://boltsmag.org/whats-on-the-ballot/prosecutors-and-sheriffs-in-2022/">1,200 public prosecutor races</a> on the ballot in November 2022, including <a href="https://ballotpedia.org/Attorney_General_elections,_2022">30 state</a> races for attorney general. </p>
<p><a href="https://boltsmag.org/whats-on-the-ballot/2022-general-election-cheat-sheet/">Only 20 or so contested races</a> now involve prosecutors with notable reform agendas – though other reform-oriented local prosecutors <a href="https://boltsmag.org/shelby-county-ousts-da-and-judge-mulroy-weirich-sugarmon-michael/">were elected</a> <a href="https://vtdigger.org/2022/08/09/sarah-george-wins-democratic-primary-for-chittenden-county-states-attorney-fending-off-police-backed-challenger/">earlier in 2022</a> and still others are not up for reelection this term. </p>
<p>Many of these <a href="https://static1.squarespace.com/static/5e319ff2fd340d698bc16f1e/t/615cba23c3925a713bd80264/1633466937856/Report_21st_century_prosecutor.pdf">change-oriented prosecutors</a> say they want to incarcerate fewer people. </p>
<p>Many of them have also pledged not to prosecute low-level misdemeanor offenses, like drug possession or trespassing. <a href="https://www.brennancenter.org/our-work/analysis-opinion/misdemeanor-system-reinforces-economic-inequality">These kinds of charges disproportionately</a>, and often unnecessarily, affect people of color and the poor, resulting in lasting criminal records.</p>
<p>These prosecutors believe they can change the system from within, improving the overall fairness of the United States’ criminal legal system, while keeping the community safe.</p>
<p>Counties and local districts in Republican-leaning states like <a href="https://www.traviscountytx.gov/district-attorney/our-office/meet-the-da">Texas</a>, <a href="https://www.wycokck.org/Government/Elected-Officials/District-Attorney-Biography">Kansas</a> and <a href="https://www.portsmouthcwa.com/">Virginia</a> all elected reform-minded prosecutors over the last few years. In the last decade, voters in major cities <a href="https://www.chicagoappleseed.org/2022/09/16/report-progressive-prosecutor-promises/">like Chicago</a> <a href="https://www.vox.com/policy-and-politics/2022/10/5/23384868/philadelphia-progressive-prosecutor-midterms-larry-krasner-impeachment-pennsylvania">and Philadelphia</a> also elected prosecutors with new visions for justice. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/491757/original/file-20221025-15802-6ysc7q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A white door says 'Ring bell for bail bonds,' in red font." src="https://images.theconversation.com/files/491757/original/file-20221025-15802-6ysc7q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/491757/original/file-20221025-15802-6ysc7q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/491757/original/file-20221025-15802-6ysc7q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/491757/original/file-20221025-15802-6ysc7q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/491757/original/file-20221025-15802-6ysc7q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/491757/original/file-20221025-15802-6ysc7q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/491757/original/file-20221025-15802-6ysc7q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A sign in Los Angeles advertises bail bonds in 2019, when California became the first state to abolish bail in most cases for suspects who cannot afford it and are awaiting trial.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/sign-advertises-a-bail-bond-company-on-august-29-2018-in-los-angeles-picture-id1025093174?s=612x612">Mario Tama/Getty Images</a></span>
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<h2>An uneven reception</h2>
<p>Aside from not seeking <a href="https://www.latimes.com/politics/story/2019-08-02/once-tough-on-crime-prosecutors-now-push-progressive-reforms">cash bail</a> for most low-level cases, <a href="https://www.vox.com/policy-and-politics/2022/10/5/23384868/philadelphia-progressive-prosecutor-midterms-larry-krasner-impeachment-pennsylvania">some progressive prosecutors</a> have also stopped prosecuting marijuana possession and most prostitution cases against sex workers. </p>
<p>This new style of prosecutor, however, has also <a href="https://www.abajournal.com/web/article/progressive-prosecutor-pushback">experienced backlash</a> at the polls. Critics argue that progressive prosecutors are bad for public safety, suggesting that <a href="https://www.voanews.com/a/why-homicide-rates-spiked-30-during-the-pandemic-/6420391.html">rises in crime</a> since the pandemic are partially because of their reform policies. </p>
<p>But a 2021 study found “<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3952764">no significant effects of these reforms on local crime rates</a>.” </p>
<p>One of the authors of that study argues that <a href="https://time.com/6045637/not-prosecuting-misdemeanors-reduce-crime/">refusing to prosecute nonviolent misdemeanor offenses</a> may actually reduce crime. Not prosecuting certain crimes can help people avoid a criminal record, which, in turn, can help them find stable housing and work. </p>
<p>Another October 2022 <a href="https://munkschool.utoronto.ca/gjl/violent-crime-and-public-prosecution-report/">study found</a> found no connection between progressive crime policies and increased homicide rates, either during the pandemic or before 2022.</p>
<p>Yet, despite the complexity of crime data, attacks on reformist prosecutors have gained momentum. </p>
<p><a href="https://www.nytimes.com/2022/06/07/us/politics/chesa-boudin-recall-san-francisco.html">Chesa Boudin</a>, a former public defender who was first elected San Francisco’s top prosecutor in 2020,, lost his position in a 2022 recall election amid criticism that his policies led to <a href="https://www.sfchronicle.com/sf/article/san-francisco-crime-rates-17487348.php">a spike in crime</a>.</p>
<p>In July 2022, <a href="https://www.usnews.com/news/politics/articles/2022-07-22/baltimore-prosecutor-marilyn-mosby-defeated-in-primary">Marilyn Mosby</a> lost her bid to retain her Baltimore prosecutor post in the Maryland Democratic primary. And Manhattan District Attorney <a href="https://www.youtube.com/watch?v=_ID4v_NheKo">Alvin Bragg</a> continues to face criticism because of his support for bail reform in New York, where he led the effort that <a href="https://www.politico.com/news/2022/08/24/new-york-democrats-bail-reform-00052207">banned cash bail</a> in most cases in 2019.</p>
<p>These prosecutors have been accused of releasing alleged criminal offenders from jail before a trial – who then <a href="https://www.thecity.nyc/2022/2/21/22944871/new-york-bail-reform-controversy-eric-adams">go on to commit</a> new crimes.</p>
<p>Yet, while there are people who committed crimes after being released from pretrial detention, <a href="https://review.law.stanford.edu/wp-content/uploads/sites/3/2017/02/69-Stan-L-Rev-711.pdf">research shows</a> that, in practice, reducing the use of cash bail has little to no effect on the percentage of people rearrested for criminal behavior. </p>
<h2>Common ground</h2>
<p><a href="http://gppreview.com/2021/03/03/public-opinion-death-penalty-republicans-democrats-agree-disagree/">Research also</a> shows that people of both major political parties are concerned about wrongful convictions, which are estimated to constitute about <a href="https://www.pnas.org/doi/pdf/10.1073/pnas.1306417111">4% of all convictions</a>.</p>
<p>I believe change-oriented prosecutors make a difference in wrongful conviction cases. There are approximately <a href="https://bjs.ojp.gov/?tid=27&ty=tp">2,300 prosecutor offices</a> in the country, and only around 100 <a href="https://www.law.umich.edu/special/exoneration/Pages/Conviction-Integrity-Units.aspx">Conviction Integrity Units</a> specifically devoted to re-investigating cases for potential errors. </p>
<p>Yet, nearly <a href="https://www.law.umich.edu/special/exoneration/Documents/Race%20Report%20Preview.pdf">one out of three exonerations between 2015 and 2022</a> were obtained with the help of a Conviction Integrity Unit. In these cases, prosecutors looked retrospectively at convictions their offices had obtained and then worked to reverse false convictions. </p>
<p>The <a href="https://www.law.umich.edu/special/exoneration/Pages/Conviction-Integrity-Units.aspx">effectiveness of these special units varies dramatically</a>, often reflecting the head prosecutor’s commitment to righting past wrongs.</p>
<p>When a prosecutor is willing to say that they made a mistake, that’s one step toward creating a more fair and legitimate system for all.</p>
<p>It also helps to free the innocent. </p>
<p>Recently, Adnan Syed, subject of the popular <a href="https://serialpodcast.org/">Serial podcast</a>, was freed after decades in prison for a 1999 murder of his ex-girlfriend <a href="https://www.usatoday.com/story/news/nation/2022/10/11/adnan-syed-charges-dropped-serial-podcast/10465862002/">that prosecutors now say he did not commit</a>. A <a href="https://medium.com/age-of-awareness/progressive-prosecutors-make-a-difference-for-the-innocent-db3a523f6dc8">reform-minded prosecutor in Baltimore County</a> helped lead a new investigation that found a lack of DNA evidence pinning Syed to the murder, leading to his release. </p>
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<a href="https://images.theconversation.com/files/491755/original/file-20221025-20-wr5xli.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman in a blue pant suit and white shirt stands at a podium outside, facing a row of microphones at what appears to be a press conference." src="https://images.theconversation.com/files/491755/original/file-20221025-20-wr5xli.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/491755/original/file-20221025-20-wr5xli.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/491755/original/file-20221025-20-wr5xli.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/491755/original/file-20221025-20-wr5xli.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/491755/original/file-20221025-20-wr5xli.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/491755/original/file-20221025-20-wr5xli.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/491755/original/file-20221025-20-wr5xli.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Erica Suter, director of the Innocence Project and Adnan Syed’s attorney, speaks on Sept. 19, 2022, when Syed’s murder conviction was overturned.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/erica-suter-dierctor-of-the-innocence-project-clinic-at-the-of-of-picture-id1243370842?s=612x612">Charlotte Plantive/AFP via Getty Images</a></span>
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<h2>Different ways forward</h2>
<p>Crime has been an effective platform for Republican candidates in the past, and they have placed it <a href="https://www.cnn.com/2022/10/11/politics/crime-republican-messaging">front and center</a> in the final weeks leading up to the midterm elections in 2022. While many Democratic district attorneys and attorneys general take a more traditional approach to crime in their election campaigns, others promise a new approach to crime and justice. </p>
<p>Voters across the country are being presented with different visions of how to maintain public safety. Contested prosecutor elections are a referendum on those competing visions of justice.</p><img src="https://counter.theconversation.com/content/192917/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jessica S. Henry does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A new wave of prosecutors, known as progressives, say that public safety can exist with policies like eliminating cash bail for people charged with low-level offenses.Jessica S. Henry, Associate Professor, Department of Justice Studies, Montclair State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1826312022-07-01T12:15:51Z2022-07-01T12:15:51ZWhat are bail funds? Two social policy experts explain<figure><img src="https://images.theconversation.com/files/470664/original/file-20220623-51579-21qkuy.jpg?ixlib=rb-1.1.0&rect=7%2C0%2C4985%2C3338&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">These funds help people stay out of jail while awaiting trial.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/in-this-photo-illustrations-handcuffs-and-hundred-us-dollar-news-photo/1230511420?adppopup=true">SOPA Images/LightRocket via Getty Images</a></span></figcaption></figure><p>When someone charged with a crime is eligible for release but cannot afford cash bail, they typically will <a href="https://www.prisonpolicy.org/graphs/arrest_pretrialdetention.html">remain in jail</a> until they are sentenced or released – unless someone makes a payment on their behalf.</p>
<p>One option is to enlist the help of a <a href="https://theappeal.org/i-worked-as-a-bail-bond-agent-heres-what-i-learned/">private bail bondsman</a> to pay the court the cash <a href="https://www.brennancenter.org/our-work/research-reports/how-cash-bail-works">used as a guarantee that a defendant will return for a hearing</a>. But bail bondsmen <a href="https://www.nytimes.com/2018/03/31/us/bail-bonds-extortion.html">charge steep fees</a>, and many engage in <a href="https://mtstandard.com/opinion/columnists/troy-downing-bail-or-jail-montanas-wild-west/article_d6f1715c-6dea-5bea-934f-3debd28b7e35.html">abusive</a>, or even <a href="http://www.insurance.ca.gov/0400-news/0100-press-releases/2022/release044-2022.cfm">criminal</a>, practices.</p>
<p><a href="https://www.nplusonemag.com/online-only/online-only/the-bail-fund-moment/">Bail funds</a>, which pool money from donors to pay bail for people who can’t afford it, are a better option. </p>
<p>These funds can be relatively large. The Minnesota Freedom Fund <a href="https://www.nytimes.com/2020/06/16/style/minnesota-freedom-fund-donations.html">received over US$30 million in donations</a> from over 900,000 donors in a four-day period to bail out protesters responding to George Floyd’s murder in 2020. Others are much smaller and operate through crowdfunding platforms like GoFundMe. Individual donations also range widely: Gifts to <a href="https://bailproject.org/">The Bail Project</a>, for example, range from a few dollars to millions.</p>
<p>We, <a href="https://scholar.google.com/citations?user=-DWRhN4AAAAJ&hl=en&oi=ao">two social</a> <a href="https://scholar.google.com/citations?hl=en&user=VdY-QtoAAAAJ">scientists</a>, are describing what are sometimes called “community bail funds.” More than 90 of these nonprofits are affiliated with the <a href="https://www.communityjusticeexchange.org/en/nbfn-directory">National Bail Fund Network</a>, which operate as part of a broader strategy to end pretrial detention.</p>
<p>Bail is only meant as a guarantee that an accused person will show up in court. Most of the money, aside from court fees, is typically repaid once all conditions are met. That means these funds get back the bulk of what they spend to bail people out of jail, and the same money can then cover someone else’s bail. Bail funds, that is, <a href="https://www.nplusonemag.com/online-only/online-only/the-bail-fund-moment/">recycle most of their donations</a> after paying potential court fees. </p>
<p>Bail funds often are local and may specialize in helping a specific community, as is the case with the <a href="https://www.lgbtqfund.org/">LGBTQ Freedom Fund</a>, <a href="https://www.blmokc.com/">Black Lives Matter Oklahoma</a>, <a href="https://reprolegaldefensefund.org/">Repro Legal Defense Fund</a>, <a href="https://www.mibfc.org/">Midwest Immigration Bond Fund</a> and the <a href="https://www.swopbehindbars.org/donate">National Sex Worker Bail Fund</a>. <a href="https://www.nationalbailout.org/history">The National Black Mamas Bailout</a> pays the cash bail owed by Black caregivers around Mother’s Day, and several mass bailout <a href="https://theconversation.com/juneteenth-freedoms-promise-is-still-denied-to-thousands-of-blacks-unable-to-make-bail-98530">initiatives exist for Juneteenth</a> and <a href="https://www.prnewswire.com/news-releases/national-expungement-works-new-strives-to-free-our-fathers-this-juneteenth-with-fathers-day-bailout-301569190.html">Father’s Day</a> as well.</p>
<p>The practice of collectively funding the use of money to free loved ones and friends has a long history in the United States that began in the days of slavery. Before the Civil War, Black communities <a href="http://nationalhumanitiescenter.org/pds/maai/emancipation/text1/text1read.htm">raised funds to purchase the freedom</a> of themselves and their families.</p>
<p>One of the first large bail funds emerged in 1920, when the <a href="https://www.britannica.com/topic/American-Civil-Liberties-Union">American Civil Liberties Union</a> established one in response to anti-communist prosecutions known as the “<a href="https://www.ushistory.org/us/47a.asp">Red Scare</a>.” Other bail funds arose in the following decades, often led by civil rights and anti-war activists.</p>
<h2>Why bail funds matter</h2>
<p>More than 80% of the <a href="https://www.prisonpolicy.org/reports/pie2022.html#slideshows/slideshow1/2">over 650,000 people in jail</a> in the U.S. have not been convicted and are presumed innocent but can’t afford bail.</p>
<p>Helping people pay bail is important because it means that they can return home and remain employed or in school. They are also less likely to be pressured to accept a <a href="https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/pleabargaining/">plea deal</a>, in which they plead guilty to a lesser charge to serve less time, whether they committed the alleged offense or not.</p>
<p>The <a href="https://www.prisonpolicy.org/reports/incomejails.html">median amount for bail is $10,000</a>. But most people who can’t afford to pay bail are living well below the poverty line – defined by the government as being in a family of four earning <a href="https://aspe.hhs.gov/topics/poverty-economic-mobility/poverty-guidelines">less than $27,750 a year</a>. </p>
<p>People of color are more likely than whites <a href="https://thehill.com/changing-america/respect/equality/502277-black-people-5-times-more-likely-to-be-arrested-than-whites/">to be arrested</a>, <a href="https://theconversation.com/juneteenth-freedoms-promise-is-still-denied-to-thousands-of-blacks-unable-to-make-bail-98530">unable to afford bail</a> and <a href="https://policyinstitute.iu.edu/news-media/stories/bail-bond-brief.html">charged higher bail and fee amounts</a>. They are also more likely to receive <a href="https://www.prisonpolicy.org/blog/2019/10/09/pretrial_race/">biased bail decisions</a>, and more likely to be held on bail, <a href="https://jjie.org/2017/01/31/focusing-on-the-families-of-rikers-inmates-a-q-a-with-photographer-salvador-espinoza/">spend time in jail</a> and <a href="https://www.sentencingproject.org/publications/6148/">end up incarcerated</a>. </p>
<p>Bail funds can help alleviate these problems, but resolving these serious challenges will require deep reforms throughout the U.S. criminal legal system.</p><img src="https://counter.theconversation.com/content/182631/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Cynthia A. Golembeski receives funding from the Robert Wood Johnson Foundation.</span></em></p><p class="fine-print"><em><span>Matthew Bakko receives funding from the Robert Wood Johnson Foundation.</span></em></p>The median amount of cash bail is $10,000 – an immense sum for people living in poverty. Bail funds, unlike bail bondsmen, don’t charge high fees.Cynthia Golembeski, PhD Candidate in Urban and Social Policy, The New SchoolMatthew Bakko, PhD Candidate in Social Work and Sociology, University of MichiganLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1493222020-11-18T13:22:51Z2020-11-18T13:22:51ZProgressive prosecutors scored big wins in 2020 elections, boosting a nationwide trend<figure><img src="https://images.theconversation.com/files/369319/original/file-20201113-21-a59wbc.jpg?ixlib=rb-1.1.0&rect=44%2C40%2C2919%2C1895&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Despite criticism during her first term, progressive prosecutor Kim Foxx won reelection as Cook County state's attorney by a 14-point margin.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/cook-county-states-attorney-kim-foxx-arrives-for-a-press-news-photo/1131458995?adppopup=true">Scott Olson/Getty Images</a></span></figcaption></figure><p>Despite the broad political polarization in the United States, the 2020 election confirmed a clear movement across both <a href="https://www.law360.com/access-to-justice/articles/1326594/a-new-class-of-prosecutors-reformers-win-races-nationwide">red and blue America</a>: the <a href="https://www.wbez.org/stories/what-kim-foxxs-reelection-says-about-racial-politics-fear-and-justice-in-chicago-and-beyond/5080dbcf-6383-459f-a309-c839fbcab653">gains made</a> by <a href="https://www.politico.com/news/2020/11/11/gascon-unseats-lacey-progressive-win-436260">reform-minded prosecutors</a>.</p>
<p><a href="https://theappeal.org/politicalreport/guide-prosecutor-sheriff-elections-2020/">Running on progressive platforms</a> that include ending mass incarceration and addressing police misconduct, candidates defeated traditional “law-and-order” prosecutors across the country.</p>
<p>Elected prosecutors – often called <a href="https://www.eatoncounty.org/227/Prosecutor-Worldwide-Websites">state’s attorneys or district attorneys</a> – represent the people of a particular county in their criminal cases. <a href="https://theappeal.org/the-past-present-and-future-of-the-los-angeles-district-attorneys-office/">Their offices</a> work with law enforcement to investigate and try cases, determine which crimes should be prioritized and decide how punitive to be. </p>
<p>After decades of incumbent prosecutors winning reelection based on their high conviction rates or the long sentences they achieved, <a href="https://www.latimes.com/california/story/2020-10-31/with-push-for-progressive-district-attorneys-elected-prosecutors-are-feeling-the-pressure">advocates for criminal justice reform began making inroads</a> into their territory a few years ago. They did so mainly by drawing attention to local races and funding progressive challengers. </p>
<h2>Birth of a movement</h2>
<p>During her 2016 run for <a href="https://nymag.com/intelligencer/2020/03/kim-foxx-wins-re-election-in-chicago.html">state’s attorney for Cook County, Illinois</a>, Kim Foxx vowed to bring more accountability to police shootings and reduce prosecutions for nonviolent crimes. </p>
<p>She won, becoming the first Black woman to serve as state’s attorney in Chicago. It was also the first high-profile sign that this progressive prosecutorial approach was working.</p>
<p>Her victory was followed by the <a href="https://www.phillymag.com/news/2017/11/07/larry-krasner-wins-district-attorney-general-election/">2017 election of Larry Krasner</a> as district attorney in Philadelphia. Krasner, a former civil rights attorney, had never prosecuted a case when he ran for office – a move that the city’s police union chief called “<a href="https://www.newyorker.com/magazine/2018/10/29/larry-krasners-campaign-to-end-mass-incarceration">hilarious</a>.” </p>
<p>But Krasner’s campaign platform – addressing mass incarceration and police misconduct – responded to a city saddled with the <a href="https://www.theatlantic.com/politics/archive/2016/03/a-reckoning-in-philadelphia/472092/">highest incarceration rate among large U.S. cities</a>, nearly seven out of every 1,000 citizens. Krasner won with 75% of the vote. </p>
<p>As a <a href="https://law.gsu.edu/profile/caren-morrison/">criminal procedure professor</a> and a former federal prosecutor, I have watched the desire for reform only grow since then. </p>
<p>Progressive candidates have pledged to transform a criminal justice system that has <a href="https://www.cnn.com/2018/06/28/us/mass-incarceration-five-key-facts/index.html">bloated prisons</a> and <a href="https://www.washingtonpost.com/crime-law/2019/12/04/states-imprison-black-people-five-times-rate-whites-sign-narrowing-yet-still-wide-gap/">disproportionately targeted people of color</a>.</p>
<p>Black Lives Matter protests have also focused attention on how prosecutors make decisions – whom they prosecute and how severely, particularly in police violence cases. </p>
<h2>Movement gains steam</h2>
<p>Despite <a href="https://cookcountyrecord.com/stories/512330836-fellow-prosecutors-blast-foxx-s-handling-of-smollett-case-undermines-very-foundation-of-court-system">criticism of her first term</a> – including her decision to <a href="https://cookcountyrecord.com/stories/512330836-fellow-prosecutors-blast-foxx-s-handling-of-smollett-case-undermines-very-foundation-of-court-system">drop the charges against actor Jussie Smollett</a> for faking a hate crime – Foxx won reelection on Nov. 3 by <a href="https://chicago.suntimes.com/2020/11/4/21549331/kim-foxx-cook-county-states-attorney-criminal-justice-reform-jussie-smollett-pat-obrien-editorial">a 14-point margin.</a> It was a sign, according to the Chicago Sun-Times, that Cook County “doesn’t want to go backward on criminal justice reform.” </p>
<p>That sentiment is echoing across the country.</p>
<p>In Orlando, <a href="https://www.orlandosentinel.com/politics/2020-election/os-ne-2020-general-election-state-attorney-20201104-6qvqm354hzg3rbunsyidvur2my-story.html">criminal justice reformer Monique Worrell</a> beat a law-and-order “independent conservative” in the race for state attorney. </p>
<p>In Detroit, Karen McDonald won her race for Oakland County prosecutor by promising “<a href="https://www.theoaklandpress.com/news/elections/election-2020-the-race-for-oakland-county-prosecutor/article_3d3d2f50-097e-11eb-a7db-3b089fa29082.html">common-sense criminal justice reform</a> that utilizes treatment courts and diversion programs, addresses racial disparity, and creates a fair system for all people.” </p>
<p>And in Colorado, Democratic prosecutors <a href="https://www.denverpost.com/2020/11/07/colorado-district-attorneys-election/">flipped two large Colorado districts</a> that had been held for decades by Republicans. </p>
<p>“I think people are starting to realize, ‘Why don’t I know who my DA is?‘” <a href="https://www.denverpost.com/2020/10/24/colorado-district-attorney-elections-2020/">said Gordon McLaughlin</a>, the new district attorney for Colorado’s Eighth Judicial District, who campaigned on alternatives to incarceration for nonviolent offenders. “It’s brought criminal justice into the main conversation.” </p>
<h2>Police accountability</h2>
<p>One prominent issue on voters’ minds is how prosecutors’ offices choose to handle police violence.</p>
<p>In <a href="https://theappeal.org/the-past-present-and-future-of-the-los-angeles-district-attorneys-office/">Los Angeles</a>, George Gascón, a former police officer, ousted Jackie Lacey. Lacey was the target of <a href="https://www.latimes.com/local/lanow/la-me-lacey-police-shooting-20180318-story.html">sustained criticism</a> from BLM activists, who protested in front of her office <a href="https://www.newyorker.com/magazine/2020/11/16/after-years-of-protests-every-wednesday-la-activists-welcome-a-new-da">every Wednesday for three years</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/369321/original/file-20201113-21-o45sse.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/369321/original/file-20201113-21-o45sse.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/369321/original/file-20201113-21-o45sse.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=384&fit=crop&dpr=1 600w, https://images.theconversation.com/files/369321/original/file-20201113-21-o45sse.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=384&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/369321/original/file-20201113-21-o45sse.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=384&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/369321/original/file-20201113-21-o45sse.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=483&fit=crop&dpr=1 754w, https://images.theconversation.com/files/369321/original/file-20201113-21-o45sse.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=483&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/369321/original/file-20201113-21-o45sse.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=483&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">George Gascón, candidate for Los Angeles district attorney, speaks during a drive-in election night watch party at the LA Zoo parking lot on Tuesday, Nov. 3, 2020.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/george-gasc%C3%B3n-candidate-for-los-angeles-district-attorney-news-photo/1229455822?adppopup=true">Myung J. Chun/Los Angeles Times via Getty Images</a></span>
</figcaption>
</figure>
<p>They complained that, during her eight years in office, Lacey criminally prosecuted only one of the <a href="https://laist.com/2020/10/30/la_justice_why_the_das_race_between_lacey_and_gascon_matters.php">approximately 600 officer-involved shootings</a>. They added that Lacey, a Black woman, sent <a href="https://www.latimes.com/local/lanow/la-me-ln-death-penalty-los-angeles-jackie-lacey-20190618-story.html">22 people of color to death row</a>.</p>
<p>Gascón vowed to hold police accountable for officer-involved shootings. During the campaign, he pledged to reopen <a href="https://www.georgegascon.org/campaign-news/gascon-pledges-to-reopen-four-fatal-officer-involved-shootings-if-elected-that-da-lacey-has-declined-to-prosecute/">high-profile cases</a>, including two where people were shot for not complying with an officer’s directions. </p>
<h2>Mass incarceration and cash bail</h2>
<p>Progressive prosecutors are likely to have the most impact by diverting people away from the criminal justice system in the first place.</p>
<p>Many have been motivated by what they see as <a href="https://www.denverpost.com/2020/10/24/colorado-district-attorney-elections-2020/">“the criminalization of poverty”</a> – a phenomenon in which the poor compile criminal records for minor offenses because they cannot afford bail or effective legal counsel.</p>
<p>Alonzo Payne, the new district attorney for San Luis Valley, Colorado, was outraged that poor people were forced to stay in jail because they couldn’t afford to post bond. </p>
<p>“I decided I wanted to bring some human compassion to the DA’s office,” he told the Denver Post.</p>
<p>Reforming the cash bail system and reducing mass incarceration is a goal shared by all of the newly elected prosecutors this election cycle, including <a href="https://theappeal.org/politicalreport/criminal-justice-reform-2020-election-results/">Jose Garza</a>, an immigrant rights attorney, in Austin, Texas.</p>
<h2>Looking ahead</h2>
<p>It seems that progressive policies are here to stay in some of the nation’s largest cities, but reformers didn’t enjoy success everywhere. </p>
<p>Candidates Zack Thomas in Johnson County, Kansas, and Julie Gunnigle in Maricopa County, Arizona, <a href="https://www.brennancenter.org/our-work/analysis-opinion/how-criminal-justice-and-police-reform-fared-election">lost their races</a>. And incumbents <a href="https://theappeal.org/politicalreport/criminal-justice-reform-2020-election-results/">withstood reformist challengers</a> in Cincinnati, Ohio, and Charleston, South Carolina. </p>
<p>Nonetheless, progressive prosecutors are increasingly winning races – and staying in power – by using the criminal justice system in more equitable ways.</p>
<p><a href="https://www.orlandosentinel.com/politics/2020-election/os-ne-2020-general-election-orange-osceola-state-attorney-20201006-vqdyi7yxkrc63k3ovjqiipxzva-story.html">Worrell</a>, in Orlando, is a good example. She ran the Conviction Integrity Unit in the district attorney’s office, investigating innocence claims from convicted defendants.</p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p>
<p>Her reform message resonated a lot more with voters than the message of her opponent, Jose Torroella, who pledged to be “more old-fashioned” and more “strict.” Worrell won the race with <a href="https://www.orlandosentinel.com/politics/2020-election/os-ne-2020-general-election-state-attorney-20201104-6qvqm354hzg3rbunsyidvur2my-story.html">nearly 66% of the votes</a>.</p>
<p>“Criminal justice reform is not something people should be afraid of,” <a href="https://www.orlandosentinel.com/politics/2020-election/os-ne-2020-general-election-orange-osceola-state-attorney-20201006-vqdyi7yxkrc63k3ovjqiipxzva-story.html">Worrell said</a>. “It means we’re going to be smart on crime, rather than tough on crime.”</p><img src="https://counter.theconversation.com/content/149322/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Caren Morrison does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Reform-minded prosecutors across the US notched victories against traditional law-and-order candidates by running on progressive platforms to reduce mass incarceration and tackle police misconduct.Caren Morrison, Associate Professor of Law, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1455262020-10-05T12:08:51Z2020-10-05T12:08:51ZRacial justice giving is booming: 4 trends<figure><img src="https://images.theconversation.com/files/359629/original/file-20200923-14-1tvijmx.jpg?ixlib=rb-1.1.0&rect=220%2C393%2C5028%2C3100&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">There's been an outpouring of giving in honor of Ahmaud Arbery and other victims of racial injustice.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/VirusOutbreakTexasArberyMural/41be3980bd884bb79e9afb4e518e74fd/photo?boardId=37be9465fcce45d283d5431cccb20a6a&st=boards&mediaType=audio,photo,video,graphic&sortBy=&dateRange=Anytime&totalCount=25&currentItemNo=8">AP Photo/Tony Gutierrez</a></span></figcaption></figure><p>The tragic, high-profile <a href="https://www.npr.org/2020/09/08/906786745/many-black-people-say-police-killings-arent-going-to-be-fixed-overnight">killings of George Floyd</a> and other Black Americans in 2020 have sparked a <a href="https://www.npr.org/2020/08/16/902179773/summer-of-racial-reckoning-the-match-lit">reckoning on race</a>. As <a href="https://www.researchgate.net/scientific-contributions/Una-Okonkwo-Osili-11047902">researchers</a> of <a href="https://scholar.google.com/citations?user=vbP7wlwAAAAJ&hl=en&oi=ao">philanthropy</a>, we’re keeping an eye on how this national awakening is affecting charitable giving across the nation.</p>
<p>We are seeing an <a href="https://www.philanthropy.com/article/Grant-Making-for-Racial/249004">outpouring of donations</a> from individuals, corporations and foundations that began to grow as soon as protests and other activities in support of racial and social justice started to spread across the country.</p>
<p>Much of this funding will likely support Black-led groups engaged in criminal justice reform and fighting for education equality. Wealthy donors in the first half of the year gave <a href="https://www.philanthropy.com/article/Companies-Lead-Philanthropic/249287">nearly US$6 billion in donations of $1 million or more</a>, but <a href="https://www.cnbc.com/2020/08/07/beyond-protests-college-students-donate-money-to-make-change-happen.html">people of at various income and wealth levels</a> are also increasingly supporting racial equity causes and organizations.</p>
<h2>1. Crowdfunding related to victims of racial injustice</h2>
<p>The GoFundMe pages crowdfunding to seek justice for <a href="https://www.gofundme.com/f/georgefloyd">George Floyd</a>, <a href="https://www.gofundme.com/f/i-run-with-maud">Ahmaud Arbery</a>, <a href="https://www.gofundme.com/f/9v4q2-justice-for-breonna-taylor?utm_source=twitter&utm_medium=social&utm_campaign=p_cp+share-sheet">Breonna Taylor</a> and <a href="https://www.gofundme.com/f/justiceforjacobblake">Jacob Blake</a> have all attracted at least $1 million so far.</p>
<p>Floyd’s GoFundMe memorial campaign has garnered <a href="https://www.insider.com/george-floyd-gofundme-most-donations-all-time-report-2020-6">more donations than any other campaign</a> in the online platform’s history, raising over $14 million with 500,000 individual donors from 140 countries worldwide. Many of these gifts to the impacted families of police violence were for $5 and few were for $50,000 or more.</p>
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<h2>2. Direct support for grassroots organizations</h2>
<p>After Memorial Day weekend, when Floyd died while in custody of the Minneapolis police, many Black-led grassroots organizations began to draw much higher levels of support as the <a href="https://www.nytimes.com/2020/06/14/us/politics/black-lives-matter-racism-donations.html">protests garnered more participation and attention</a>.</p>
<p>For example, when protests erupted, the <a href="https://minnesotafreedomfund.org/">Minnesota Freedom Fund</a>, which advocates for a more equitable system of cash bail, turned its attention to bailing out arrested protesters. Once the fund reached a total of <a href="https://www.complex.com/life/what-is-the-minnesota-freedom-fund-explainer">$20 million</a> in donations, its organizers urged donors to support <a href="https://www.thecut.com/article/george-floyd-protests-how-to-help-where-to-donate.html">Black-led organizations</a>.
Other grassroots organizations and networks also received support, such as the <a href="https://www.bbc.com/news/world-us-canada-53284611">National Bail Fund Network</a>, which received $80 million in donations in late spring.</p>
<p>Even before the protests erupted, the Movement for Black Lives had received $5 million in the first five months of 2020 to support Black communities affected by the pandemic and to address broader issues of racial equity. This was <a href="https://www.philanthropy.com/article/The-Movement-for-Black-Lives/248960/">nearly double the $2.7 million</a> the group, founded in 2014 following the death of Michael Brown in Ferguson, Missouri, raised in all of 2019, according to the Chronicle of Philanthropy. </p>
<p>The Libra Foundation announced that a dozen grant-making organizations were joining together to give a total of <a href="https://philanthropynewsdigest.org/news/new-funder-collaborative-commits-36-million-to-black-movement-leaders">$36 million to Black-led organizations</a> and social movements like The Black Youth Project and the National Black Food and Justice Alliance.</p>
<p>These numbers provide only a partial estimate of total giving to these causes, and it will take at least until mid-2021 for the IRS to begin to release the official records and statistics needed for a fuller picture of giving to these groups. Based on data from Candid, a research group, institutional funders and large donors have contributed <a href="https://www-philanthropy-com.proxy.ulib.uits.iu.edu/article/Companies-Lead-Philanthropic/249287">$5.9 billion for organizations primarily engaged in in racial equity work</a> to date. </p>
<h2>3. Shoring up HBCUs</h2>
<p>Historically Black colleges and universities, often called HBCUs, and <a href="https://uncf.org/">related groups</a> that <a href="https://www.tmcf.org/">fund scholarships</a> for the students who attend them, are getting more donations in 2020.</p>
<p><a href="https://www.educationdive.com/news/5-hbcu-funding-trends-to-watch-in-2020/570949/">HBCUs in the past</a> received <a href="https://theconversation.com/1-in-10-hbcus-were-financially-fragile-before-covid-19-endangered-all-colleges-and-universities-140528">fewer donations</a> of <a href="https://philanthropy.iupui.edu/files/file/jga_million_dollar_ready_academic_working_paper_final_for_upload_2.pdf">$1 million or more</a> than other institutions, a pattern our colleague <a href="https://theconversation.com/profiles/tyrone-mckinley-freeman-443150">Tyrone Freeman</a> has been studying for years. As a result, HBCU endowments are relatively small.</p>
<p>All told, the roughly 100 HBCUs have a total of <a href="https://feed.georgetown.edu/access-affordability/big-philanthropic-investments-a-bright-spot-for-hbcus-amid-financial-uncertainty-worsened-by-pandemic/">only $2 billion</a> in their endowments. By comparison, 54 predominantly white colleges and universities have $2 billion or more in their own endowment.</p>
<p>In 2018, for example, there were seven of these major gifts totaling $48 million. In contrast, there were at least 33 of these donations by mid-September of 2020, totaling $347 million, according a list of these donations of $1 million or more compiled by <a href="https://philanthropy.iupui.edu/research/million-dollar-list/index.html">The Chronicle of Philanthropy</a> and tracking by statistician <a href="https://philanthropy.iupui.edu/people-directory/han-xiao.html">Xiao Han</a> of additional news reports and public information disclosed by donors and the schools. </p>
<p>These <a href="https://theconversation.com/1-in-10-hbcus-were-financially-fragile-before-covid-19-endangered-all-colleges-and-universities-140528">philanthropic lifelines</a> for Howard University, Morehouse College, Spelman College and other schools have totaled in the hundreds of millions of dollars from donors like <a href="https://www.cbsnews.com/news/hbcu-record-donations-schools-histories-howard-hampton-xavier/">MacKenzie Scott</a> – Jeff Bezos’ ex-wife – <a>Netflix CEO Reed Hastings</a> and former New York City Mayor <a href="https://nonprofitquarterly.org/bloomberg-equity-initiatives-first-investment-is-100-million-gift/">Michael Bloomberg</a>.</p>
<p>Corporate giving for Black colleges and other causes is also on the rise. In early June, the Financial Times reported that Microsoft, Google, Amazon and other large corporations had recently pledged at least <a href="https://www.ft.com/content/5a83fcff-9def-4a66-b65d-2b030759f755">$458 million to support progress toward racial equity</a>, including support for higher education. All told, <a href="https://www.cnet.com/news/apple-ceo-tim-cook-announces-100-million-racial-equity-and-justice-initiative/">Apple has said it donated $100 million or more</a> to assorted racial equity initiatives.</p>
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<h2>4. Black philanthropists are leading the way</h2>
<p>Donors from all backgrounds have turned their attention to increasing calls for racial equity. While new donors are turning their giving to racial equity issues, <a href="https://theconversation.com/400-years-of-black-giving-from-the-days-of-slavery-to-the-2019-morehouse-graduation-121402">wealthy African Americans</a> have contributed to causes that support racial justice and equity.</p>
<p>In recent years, we have continued to see affluent Black people, such as the entertainer and fashion icon <a href="https://www.insidephilanthropy.com/home/2020/8/31/from-climate-resilience-to-covid-response-rihanna-is-becoming-a-major-philanthropic-player">Rihanna</a> and basketball great <a href="https://www.forbes.com/sites/alexandrasternlicht/2020/06/05/michael-jordan--jordan-brand-pledge-100-million-to-racial-equality/#63c1ece95934">Michael Jordan</a>, make significant <a href="https://www.forbes.com/sites/adamzagoria/2019/10/21/why-michael-jordan-has-donated-30-million-to-activist-projects-including-health-clinics-and-hurricane-relief/#7ecbec0e7720">philanthropic commitments</a>.</p>
<p>Along with other colleagues at the Lilly Family School of Philanthropy and in partnership with the Bank of America, we are conducting a long-term <a href="https://www.privatebank.bankofamerica.com/articles/2018-us-trust-study-of-high-net-worth-philanthropy.html">research project regarding affluent donors</a>. Based on our findings in our 2018 report, at least half of all wealthy Black donors supported African American causes, compared to 6.5% overall of all surveyed donors.</p>
<p>Additionally, 43.8% of the wealthy Black donors surveyed indicated that they made giving to groups that aim to improve race relations a high priority, as opposed to an average of 5.7% all donors.</p>
<p>A diverse range of donors are also increasingly participating in providing large racial justice gifts. These gifts include <a href="https://www.newsbreak.com/news/0PFyaZKE/kroger-ceo-addresses-racial-injustice">Kroger supermarket chain CEO Rodney McMullen</a> and the hedge fund investor <a href="https://www.opensocietyfoundations.org/voices/a-220-million-investment-in-racial-justice">George Soros’ Open Society Foundations</a>.</p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p>
<p>In mid-September, philanthropist <a href="https://medium.com/@susansandlerfund/my-cancer-milestone-and-my-philanthropic-legacy-a338d03bfc94">Susan Sandler</a> announced that she was giving a total of $200 million to an array of racial justice groups. Sandler’s disclosure echoed <a href="https://theconversation.com/5-takeaways-from-mackenzie-scotts-1-7-billion-in-support-for-social-justice-causes-143659">Scott’s announcement</a>, in <a href="https://medium.com/@mackenzie_scott/116-organizations-driving-change-67354c6d733d">July 2020</a>, that she was giving $587 million to HBCUs and racial justice organizations.</p>
<p>That means established civil rights organizations such as the NAACP and the Urban League, and newer racial justice groups like the <a href="https://wlos.com/news/local/project-aims-to-recognize-buncombe-county-lynching-victims">Equal Justice Initiative</a>, which aims to end mass incarceration and advance racial equity, and the <a href="https://www.theverge.com/2020/8/28/21405770/google-assistant-feature-donation-center-of-policing-equity-racial-inequality">Center for Policing Equity</a>, a think tank focused on improving racial equity within police departments, are all getting a boost.</p><img src="https://counter.theconversation.com/content/145526/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>From thousands of people chipping in as little as $5 to George Floyd’s GoFundMe to donations well in excess of $1 million to HBCUs, anti-racist philanthropy is rising.Kim Williams-Pulfer, Postdoctoral Research Appointee-Mays Family Institute on Diverse Philanthropy, IUPUIUna Osili, Professor, Economics and Philanthropic Studies; Associate Dean for Research and International Programs, Lilly Family School of Philanthropy, IUPUILicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1345262020-03-25T18:44:24Z2020-03-25T18:44:24ZWe need to consider granting bail to unsentenced prisoners to stop the spread of coronavirus<figure><img src="https://images.theconversation.com/files/322800/original/file-20200325-181230-dlmedz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">AAP/David Gray</span></span></figcaption></figure><p>Prison is, understandably, a very closed environment. Many prisons are also overcrowded. COVID-19 has <a href="https://theconversation.com/explainer-how-will-the-emergency-releahttps://theconversation.com/explainer-how-will-the-emergency-release-of-nsw-prisoners-due-to-coronavirus-work-134523se-of-nsw-prisoners-due-to-coronavirus-work-134523">already entered</a> the prison system and any further spread would be <a href="https://theconversation.com/why-releasing-some-prisoners-is-essential-to-stop-the-spread-of-coronavirus-133516">catastrophic for prisoners, staff, their families and the wider community</a>.</p>
<p>The flow of prisoners in and out of custody in Australia is huge. More than 160 people enter our adult prisons every day. <a href="https://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4512.0Main+Features1December%20Quarter%202019?OpenDocument">Over three-quarters of these people are unsentenced</a> – also known as being “on remand”. </p>
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Read more:
<a href="https://theconversation.com/explainer-how-will-the-emergency-release-of-nsw-prisoners-due-to-coronavirus-work-134523">Explainer: how will the emergency release of NSW prisoners due to coronavirus work?</a>
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<p>Indeed, a third of the current Australian prison population is in custody on remand. This means there are over <a href="https://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4512.0Main+Features1December%20Quarter%202019?OpenDocument">14,000 people in prison</a> who have not yet been found guilty or, less often, are waiting to be sentenced. </p>
<p>Let’s not forget that about 160 people depart prisons every day too. If COVID-19 finds its way into prison, that means a lot of people could become carriers if they fail to self-isolate when they exit the prison system. Already, <a href="https://www.canberratimes.com.au/story/6693838/three-act-prisoners-in-isolation-as-concern-over-coronavirus-outbreak-behind-bars-deepens/">three prisoners in the ACT are in isolation due to fears of infection</a>.</p>
<p>Corrective services around the country have suspended <a href="https://www.smh.com.au/national/personal-prison-visits-banned-as-courts-face-greatest-crisis-20200320-p54ccf.html">all prisoner visits</a> by family members and support workers. </p>
<p>It is not surprising applications have been coming before the courts where barristers have asked judges to grant bail to persons who, in other circumstances, would very likely be denied bail. </p>
<p>Judges and magistrates are required to consider a range of issues in deciding such matters. It is becoming increasingly apparent that this may now include whether the accused is in a high-risk category, such as susceptibility to COVID-19, and will have limited contact with family and friends caused by the new restrictions on visits. </p>
<p>For certain types of offences, courts are required to refuse bail unless they are satisfied the applicant has shown there are <a href="https://eprints.utas.edu.au/27583/">“exceptional circumstances” that justify bail</a>. Is COVID-19 an exceptional circumstance? Let’s look at two examples.</p>
<p>On Monday, <a href="https://www.courts.act.gov.au/supreme/judgments/r-v-stott-no-3">the ACT Supreme Court granted bail to a woman</a> because her lawyer successfully argued her visiting rights had been restricted by the COVID-19 outbreak. The judge said: </p>
<blockquote>
<p>Persons on remand no doubt rely on the limited social contact they are permitted, most of which is achieved through visits. In particular, contact with family is an important element in the life of a person resident at the [ACT prison].</p>
</blockquote>
<p>And last week the <a href="https://aucc.sirsidynix.net.au/Judgments/VSC/2020/T0128.pdf">Supreme Court of Victoria granted another woman bail</a> in circumstances the judge described as “extraordinary”. He was referring to the possibility of significant delays in the justice process as a result of COVID-19,</p>
<blockquote>
<p>which would have substantial effects on her and, no doubt, her relationship with her family, [and] which would be a dramatic development for a person who had not previously been in custody.</p>
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<p>The judge also noted it was likely the woman would spend more time in custody on remand than she would get as a sentence if found guilty.</p>
<p>Significantly, <a href="https://7news.com.au/lifestyle/health-wellbeing/nsw-suspends-all-new-jury-trials-indefinitely-on-fears-of-coronavirus-transmission-c-746900">many courts</a> have postponed new jury trials to reduce the risk of transmission. This may lead to <a href="https://www.theage.com.au/national/victoria/the-courts-and-coronavirus-what-will-happen-to-victoria-s-justice-system-20200316-p54an9.html">delays of more than a year</a>.</p>
<p>It is also important to understand that prisons operate on the legitimacy of the system. When prisoners feel – rightly or wrongly – they are being treated unfairly, the risk of riots and breakouts increases. Italy has recently had riots in more than 20 prisons. <a href="https://www.independent.co.uk/news/world/europe/coronavirus-italy-prison-riots-death-toll-modena-foggia-alfonso-bonafede-a9396311.html">Twelve prisoners have died and 16 escaped</a> as a result. Similar events have been reported in <a href="https://www.theguardian.com/world/2020/mar/22/colombian-prison-riot-over-coronavirus-fears-kills-23">Colombia</a>.</p>
<p>The capacity to manage the system may be affected, too, as community transmission and fear of infection in prisoners increase, and more correctional officers are required to self-isolate for long periods.</p>
<p>Releasing some people from prison is part of the solution to <a href="https://www.nytimes.com/2020/03/11/science/coronavirus-curve-mitigation-infection.html">“flattening” the coronavirus curve</a>. New South Wales has already <a href="https://www.smh.com.au/national/nsw-prepares-for-early-release-of-prisoners-during-covid-19-pandemic-20200324-p54db5.html">passed legislation to release some low-risk and vulnerable people</a>, although it <a href="https://theconversation.com/explainer-how-will-the-emergency-release-of-nsw-prisoners-due-to-coronavirus-work-134523">does not cover unsentenced prisoners</a>.</p>
<p>But this legislation is particularly appropriate for unsentenced prisoners, who are entitled to the presumption of innocence, especially those charged with less serious offences. Bail conditions and <a href="https://www.iza.org/publications/dp/12122/can-electronic-monitoring-reduce-reoffending">electronic monitoring</a> can help ensure community safety, in addition to the increasing restrictions imposed on all Australians to self-isolate. </p>
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<a href="https://theconversation.com/how-to-flatten-the-curve-of-coronavirus-a-mathematician-explains-133514">How to flatten the curve of coronavirus, a mathematician explains</a>
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<p>Releasing some prisoners early will reduce the pressure on the health system in the months ahead. It will also reduce the risk to the broader community if we act now, rather than releasing people once COVID-19 is widespread in prisons.</p>
<p>We recently signed <a href="https://alhr.org.au/wp/wp-content/uploads/2020/03/Open-letter-to-Australian-governments-on-COVID-19-and-the-criminal-justice-system-final-with-signatures.pdf">an open letter to governments</a>, urging them to take a range of steps to limit the exposure of prisoners to COVID-19, including early release for some prisoners. We also welcome the decisions of judges and magistrates who are using their discretion to limit the possibility that accused persons, who have yet to be found guilty, will be exposed to the coronavirus, especially in circumstances where they can no longer receive visitors. </p>
<p>As governments keep telling us, perilous times require bold decision-making.</p><img src="https://counter.theconversation.com/content/134526/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre receives funding from the Criminology Research Council. He is affiliated with the ALP State Council (SA). </span></em></p><p class="fine-print"><em><span>Lorana Bartels receives funding from the Australian Research Council and Australian, ACT, Tasmanian and Victorian governments. She was previously a member of the management committee of Prisoners Aid (ACT) and is the ACT representative on the After Prison Network. Professor Bartels was one of the co-authors of the open letter referred to in this article. </span></em></p><p class="fine-print"><em><span>Toni Makkai does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Releasing prisoners on remand – who are entitled to a presumption of innocence – would reduce the risk of them contracting COVID-19 and the disease spreading within prisons.Rick Sarre, Professor of Law and Criminal Justice, University of South AustraliaLorana Bartels, Professor and Program Leader of Criminology, Australian National UniversityToni Makkai, Emeritus Professor, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1249902019-10-11T03:10:21Z2019-10-11T03:10:21ZCattle prods and welfare cuts: mounting threats to Extinction Rebellion show demands are being heard, but ignored<p>Scores of arrests have been made across Australia as the Extinction Rebellion enters its fifth day of protests. </p>
<p>The activists are desperately trying to force the Australian government to take serious and effective action against climate change. And their brand of civil disobedience has caused major inconveniences, from hanging off bridges to locking themselves to gates, vehicles or cement blocks.</p>
<p>But while inconvenient, their protests are still non-violent. This is an important point to stress, as the members of state and federal government peddle <a href="https://www.smh.com.au/politics/queensland/disruptive-protesters-should-be-heavily-fined-or-jailed-says-dutton-20191003-p52x9k.html">the view</a> that they are criminals and anarchists. </p>
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<p>In fact, as the movement grows stronger, so do the governments’ attempt to stop it. It shows the Extinction Rebellion’s demands are actually being heard, but at the same time, the drastic responses make it clear policy-makers will still choose to ignore them.</p>
<h2>Draconian responses to social protest</h2>
<p>Queensland premier Annastacia Palaszczuk last month used social media to <a href="https://twitter.com/AnnastaciaMP/status/1163599997197148162">denounce the “sinister” tactics of “stupid” protesters</a>. She claims the current XR protests are “absolutely ridiculous” and are endangering people’s lives. </p>
<p>Her government is now fast-tracking new legislation that would mean possessing a locking device could lead to <a href="https://www.abc.net.au/news/2019-10-09/extinction-rebellion-protest-brisbane-annastacia-palaszczuk-laws/11585826">a jail term</a> of up to two years, or a fine of up to $6,000. </p>
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<p>Pauline Hanson has said Queenslanders should use <a href="https://www.vice.com/en_au/article/j5y8v7/australian-politician-pauline-hanson-police-cattle-prods-climate-protesters">cattle prods on climate change activists</a>, whom she labelled “unwashed idiots”. And a few days ago, Studio 10 host Kerri-Anne Kennerley said <a href="https://www.news.com.au/technology/environment/climate-change/use-them-as-a-speed-bump-kerrianne-kennerley-suggests-running-over-climate-change-protesters/news-story/6dcec4f260d9df8f2cf3f6f4542e8614">motorists should run over XR protesters</a>.</p>
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Read more:
<a href="https://theconversation.com/animal-rights-activists-in-melbourne-green-collar-criminals-or-civil-disobedients-115119">Animal rights activists in Melbourne: green-collar criminals or civil 'disobedients'?</a>
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<p>Peter Dutton and Michaelia Cash added fuel to the fire. The Home Affairs minister labelled the XR protesters “fringe-dwellers”, and claimed they should face mandatory jail sentences and <a href="https://www.theguardian.com/australia-news/2019/oct/03/peter-dutton-accused-dictator-urging-welfare-cuts-protesters">welfare cuts</a>. </p>
<p>Senator Cash <a href="https://www.theaustralian.com.au/nation/politics/climate-protesters-thumbing-noses-at-taxpayers-peter-dutton/news-story/ef7fcb774d6ceb1927a0c06a90f74fc6">added</a>: “taxpayers should not be expected to subsidise the protests of others”, since protesting is not an exemption from a welfare recipient’s obligation to look for a job.</p>
<p>What’s more, NSW Police have imposed stringent bail conditions on protesters, traditionally used with members of bikie gangs. The bail conditions <a href="https://www.theguardian.com/environment/2019/oct/09/absurd-bail-conditions-prevent-extinction-rebellion-protesters-going-near-other-members">prevent them</a> from “going near, or contacting or trying to go near or contact (except through a legal representative) any members of the group Extinction Rebellion”. They’re also not allowed to be within 2.5 kilometres of Sydney’s CBD. </p>
<p>These conditions had the curious result of also preventing defendants from attending court in the Sydney CBD. </p>
<h2>Ad hoc laws</h2>
<p>Yesterday, former Greens Senator Scott Ludlam had his bail conditions revoked by deputy chief magistrate Jane Mottley, who said they were <a href="https://www.theguardian.com/environment/2019/oct/10/extinction-rebellion-scott-ludlam-has-absurd-bail-conditions-dismissed-by-judge">not necessary</a> given the low seriousness of the offences. It’s expected many more cases will be dismissed on the same ground. </p>
<p>Nevertheless, this use of bail conditions against XR activists raises serious concerns, as citizens are threatened with jail if they insist on partaking in political activism. </p>
<p>The conditions appear to violate basic democratic rights, namely, freedom of opinion, movement and assembly, according to the <a href="https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx">International Covenant on Civil and Political Rights</a>. </p>
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Read more:
<a href="https://theconversation.com/why-does-international-condemnation-on-human-rights-mean-so-little-to-australia-53814">Why does international condemnation on human rights mean so little to Australia?</a>
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<p>But it’s not the first time we see these kinds of ad hoc responses to social protest. Earlier this year, the federal government introduced <a href="https://theconversation.com/it-isnt-clear-how-the-new-bill-against-animal-rights-activists-will-protect-farmers-120588">The Criminal Code Amendment (Agricultural Protection) Bill 2019</a>, specifically targeting the growing animal rights movement in Australia. </p>
<p>Before then, the NSW government introduced the <a href="https://www.parliament.nsw.gov.au/bills/Pages/bill-details.aspx?pk=3275#targetText=Inclosed%20Lands%2C%20Crimes%20and%20Law,Legislation%20Amendment%20(Interference)%20Bill%202016&targetText=An%20Act%20to%20amend%20the,and%20other%20businesses%20or%20undertakings.">Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016</a>, targeting anti-mining protests. </p>
<p>And some have expressed concerns that Palaszczuk’s efforts to crack down on civil disobedience are reminiscent of the authoritarian Bjelke-Petersen era, when the QLD government allowed extreme police violence against <a href="https://www.theguardian.com/australia-news/2019/oct/10/extinction-rebellion-labor-members-say-chilling-mass-arrests-have-echoes-of-bjelke-petersen-era">peaceful protesters</a>.</p>
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Read more:
<a href="https://theconversation.com/issues-that-swung-elections-the-dramatic-and-inglorious-fall-of-joh-bjelke-petersen-115141">Issues that swung elections: the dramatic and inglorious fall of Joh Bjelke-Petersen</a>
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<p>But it’s worth remembering these XR protests have so far only caused traffic disruptions. While it constitutes a punishable offence, they are fine-only offences at most, as the judge noticed in Ludlam’s case.</p>
<p>Laws already exist to sanction those who breach traffic regulation. With reference to Queensland’s proposed anti-protest legislation, the <a href="https://www.abc.net.au/news/2019-10-09/extinction-rebellion-protest-brisbane-annastacia-palaszczuk-laws/11585826">Human Rights Law Centre noticed</a>: </p>
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<p>devices such as sleeping dragons, monopoles and tripods are commonly used in peaceful protest across Australia — our criminal laws already adequately cover their use when they cause major disruption.</p>
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<p>The new laws may allow the police to search and arrest anyone who engages in a peaceful protest.</p>
<h2>Communicative nature of protest</h2>
<p>As I argue in <a href="https://rowman.com/ISBN/9781786607164/Civil-Disobedience-A-Philosophical-Overview">my recent book</a> on civil disobedience, this form of illegal protest has an inherent communicative nature. It seeks to elicit a reply from governments concerning the necessity of changing a law or policy. </p>
<p>From this standpoint, the tough, and seemingly unnecessary, responses to the XR movement are, paradoxically, encouraging. They reveal governments cannot continue to ignore the voices of environmental activists. </p>
<p>On the other hand, the way state and federal governments have chosen to respond show their unwillingness to entertain the activists’ demands. </p>
<p>Besides the mere goal of deterring people from engaging in further protest, governments are also following a familiar strategy involving the use of patronising language, aiming to dismiss XR activists as not worthy of its attention. For instance, the millions of young people who took part in the School Strike for Climate were just “<a href="https://www.news.com.au/lifestyle/parenting/school-life/the-truth-about-australias-climate-change-truants/news-story/613dc0906024c3d2b3be68ac2f123dc8">skipping school</a>”. </p>
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Read more:
<a href="https://theconversation.com/lock-on-devices-are-a-symbol-of-non-violent-protest-but-they-might-soon-be-banned-in-queensland-122472">'Lock-on devices' are a symbol of non-violent protest, but they might soon be banned in Queensland</a>
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<p>These are all ways for governments to avoid having to answer for the legitimate questions about its <a href="https://www.theguardian.com/australia-news/2019/oct/10/nsw-government-may-open-two-new-coal-fields-for-exploration-to-boost-economic-growth">controversial policies and careless attitude</a> about scientists’ warning about rising global temperatures. </p>
<p>As they strives to come up with more demeaning labels for the XR movement, we are left to hope they may eventually apply their creative skills towards finding ways to finally cut Australia’s carbon emissions.</p><img src="https://counter.theconversation.com/content/124990/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Piero Moraro does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>They’ve been branded as anarchists and ‘fringe-dwellers’, but do Extinction Rebellion protesters really warrant such drastic reactions?Piero Moraro, Lecturer in Criminal Justice, Charles Sturt UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1223922019-09-06T01:35:16Z2019-09-06T01:35:16ZLocking up legally innocent people before their trial is straining Victoria’s prisons<figure><img src="https://images.theconversation.com/files/289797/original/file-20190828-184196-uknfyr.jpg?ixlib=rb-1.1.0&rect=36%2C0%2C5970%2C4016&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Despite opening a new prison in 2017, Victoria's prisons are still overcrowded. </span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Victoria is facing an incarceration crisis. Despite a new prison (Ravenhall) opening in 2017, the state’s prison system is under enormous strain, with the premier recently announcing <a href="https://www.news.com.au/national/breaking-news/prefab-prison-cells-destined-for-vic-jails/news-story/e77d80f3c6a74216488bcaafb8ce8afb">prefabricated prison cells</a> would be introduced in existing prisons to cope with overcrowding. </p>
<p><a href="http://andrewleigh.org/pdf/SecondConvictAge.pdf">Recent research</a> by Federal MP Andrew Leigh argues we are now in a “second convict age”, imprisoning a greater proportion of the adult population than at any point since 1899. Imprisoning people before their trial contributes to this startling situation.</p>
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Read more:
<a href="https://theconversation.com/locking-up-kids-damages-their-mental-health-and-sets-them-up-for-more-disadvantage-is-this-what-we-want-117674">Locking up kids damages their mental health and sets them up for more disadvantage. Is this what we want?</a>
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<p>In fact, a key driver of the increasing prison population is the unprecedented increase in the number of people imprisoned before trial. These are people who aren’t granted bail and are being held in prison “on remand” (pending trial). In fact, nearly <a href="https://www.corrections.vic.gov.au/publications-manuals-and-statistics/monthly-time-series-prisoner-and-offender-data">two in five prisoners</a> are currently on remand.</p>
<p>There are now <a href="https://www.corrections.vic.gov.au/publications-manuals-and-statistics/monthly-time-series-prisoner-and-offender-data">more legally innocent</a> people in jail in Victoria than there were convicted prisoners in 2005. </p>
<p>But Victoria is not unique. A growth in the remand population has been taking place in other Australian states and territories, with even higher proportions of prisoners being held on remand in <a href="https://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0%7E2018%7EMain%20Features%7EUnsentenced%20prisoners%7E11">South Australia and the Australian Capital Territory.</a> </p>
<h2>The changing function of bail</h2>
<p>The increase in the number of people being held in prison before their trial is due to a change in the function of bail. </p>
<p>Traditionally, decisions were primarily based on an assessment of whether the person seeking bail would, if released back into the community, then turn up at court for the hearing of their case. Anyone deemed to be unlikely to do so would be held in prison until their trial.</p>
<p>Recent <a href="https://www.parliament.vic.gov.au/publications/research-papers/send/36-research-papers/13893-no-bail-more-jail-breaking-the-nexus-between-community-protection-and-escalating-pre-trial-detention">Victorian parliamentary debates</a> make it clear that decisions about bail now focus on protecting the community from crimes that might be committed if people are released on bail. </p>
<p>This means that bail now essentially functions as a means of crime prevention.</p>
<p>And legislative changes have made it harder to get bail in Victoria. There are now more than <a href="http://www.legislation.vic.gov.au/domino/Web_Notes/LDMS/LTObject_Store/ltobjst10.nsf/DDE300B846EED9C7CA257616000A3571/83594512C8F68C8ECA2584100014B9EA/$FILE/77-9008aa144%20authorised.pdf">100 offences</a> where the person applying for bail must establish why they should not be detained in custody. These offences include murder but also many drug and assault offences. </p>
<p>This “reverse onus” is contrary to established legal principles that presume innocence and place responsibility on the prosecution to establish the case against an accused person.</p>
<h2>The exception, not the rule</h2>
<p>Several high profile crimes underpin the concerns about people on bail committing offences. <a href="https://www.theage.com.au/national/victoria/adrian-bayley-how-the-justice-system-left-him-free-to-stalk-melbournes-streets-20150325-1m70ps.html">Adrian Bayley</a> was on bail when he raped and murdered Jill Meagher in 2012. <a href="https://www.heraldsun.com.au/news/law-order/masa-vukotics-killer-sean-price-shocks-own-lawyers-by-admitting-to-rape/news-story/0f45090496ca74aa4af2c9ee5f34dd30">Sean Price</a> was on bail and a supervision order when he killed Masa Vukotic in 2015. </p>
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Read more:
<a href="https://theconversation.com/after-bourke-st-victoria-should-not-rush-in-on-bail-reform-71697">After Bourke St, Victoria should not rush in on bail reform</a>
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<p>And community outrage was amplified when it became known that <a href="https://www.theaustralian.com.au/nation/bourke-st-inquest-to-scrutinise-police-handling-of-james-gargasoulas-before-deadly-rampage/news-story/ec7918df1de1c0c1e7103fdb42c206d1">James Gargasoulas</a> was on bail when he killed six people and injured 27 more in Bourke Street in January 2017.</p>
<p>With such terrible crimes dominating parliamentary debates and media reporting, it is hard to remember that violent offending by those released on bail is the exception rather than the rule. </p>
<p><a href="https://www.parliament.vic.gov.au/publications/research-papers/send/36-research-papers/13893-no-bail-more-jail-breaking-the-nexus-between-community-protection-and-escalating-pre-trial-detention">Most people do not commit an offence while on bail</a>. If they do, the most likely offences are property, traffic and justice offences.</p>
<p>In Victoria, we are imprisoning far too many people as a way of dealing with serious problems created by a small number of offenders. </p>
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Read more:
<a href="https://theconversation.com/the-folly-of-writing-legislation-in-response-to-sensational-crimes-106417">The folly of writing legislation in response to sensational crimes</a>
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<h2>The downside of imprisoning people before trial</h2>
<p>We spend a lot of money putting a large number of people in prison before their trial. But the benefits aren’t clear. </p>
<p>Imprisoning those charged with, but not convicted of, a crime breaches the right to liberty and the presumption of innocence.</p>
<p>Being imprisoned disrupts family relationships, can lead to the loss of employment, makes preparing for trial more difficult and exposes people to the dangers of a prison environment. </p>
<p>Women and Indigenous Australians are particularly disadvantaged, with more Indigenous Australians <a href="https://www.theguardian.com/australia-news/2018/aug/30/more-than-half-of-147-indigenous-people-who-died-in-custody-had-not-been-found-guilty">dying on remand</a> than after being sentenced. </p>
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Read more:
<a href="https://theconversation.com/legal-and-welfare-checks-should-be-extended-to-save-aboriginal-lives-in-custody-121814">Legal and welfare checks should be extended to save Aboriginal lives in custody</a>
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<p>And women are more likely to be denied bail than men. Yet most women who are being held on remand in Victoria have not been charged with violent crimes but are accused of <a href="https://www.corrections.vic.gov.au/sites/default/files/embridge_cache/emshare/original/public/2019/03/71/021fe80ab/women_in_prison2019.pdf">drug, burglary and other property offences</a>. Just over half of them <a href="https://www.corrections.vic.gov.au/sites/default/files/embridge_cache/emshare/original/public/2019/03/71/021fe80ab/women_in_prison2019.pdf">don’t even apply for bail.</a> </p>
<p>There are more disadvantages associated with imprisonment before trial.
Some people will be found <a href="https://www.lawreform.justice.nsw.gov.au/Documents/Publications/Reports/Report-133.pdf">not guilty</a> when their trial takes place or, if convicted, given a non-custodial sentence, such as a community corrections order or a fine. These people receive no compensation for the time they have spent in prison.</p>
<p>Troublingly, there is also emerging <a href="https://pdfs.semanticscholar.org/5fd1/b1adadbbc117eeab4b40e5bdcadd135e9d7b.pdf?_ga=2.171774816.1558033337.1566862201-885460693.1565908661">evidence</a> that denying bail and imprisoning people makes it more likely they will commit a criminal offence in the future. </p>
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Read more:
<a href="https://theconversation.com/babies-and-toddlers-are-living-with-their-mums-in-prison-we-need-to-look-after-them-better-117170">Babies and toddlers are living with their mums in prison. We need to look after them better</a>
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<p>Carefully controlled research from the United States indicates pre-trial imprisonment itself has this <a href="https://pdfs.semanticscholar.org/5fd1/b1adadbbc117eeab4b40e5bdcadd135e9d7b.pdf?_ga=2.171774816.1558033337.1566862201-885460693.1565908661">“downstream” effect</a>. It’s a sad irony that imprisoning people before trial to increase community safety may actually contribute to later offending that places the community at risk. </p>
<p>Collectively, this information suggests we need to more accurately identify those who present a serious risk to community safety and abandon the current broad approach that is resulting in too many people being detained. </p>
<p>We should then re-invest the money being spent on imprisoning people before trial into more productive activities, such as housing and drug and alcohol services. </p>
<p>This greater support would enable more people to be released on bail and get the services they need, contributing to their rehabilitation - the best form of community protection.</p><img src="https://counter.theconversation.com/content/122392/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Marilyn McMahon recently completed a report on bail as part of a Victorian Parliamentary Library Fellowship.</span></em></p>There are now more legally innocent people in jail in Victoria than there were convicted prisoners in 2005.Marilyn McMahon, Deputy Dean, School of Law, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/794942017-06-22T00:37:18Z2017-06-22T00:37:18ZRestricting bail and parole for those with terror links is no cure-all<figure><img src="https://images.theconversation.com/files/174831/original/file-20170621-2627-1xpyd2r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The new anti-terror laws COAG has proposed for Australia go far beyond those in the UK.</span> <span class="attribution"><span class="source">AAP/Rob Blakers</span></span></figcaption></figure><p>Earlier this month, the Council of Australian Governments (COAG) agreed that the states and territories should enact <a href="https://theconversation.com/coag-agrees-to-new-push-on-security-after-melbourne-attack-79205">new anti-terrorism laws</a>. This came in the wake of <a href="http://www.theage.com.au/victoria/brighton-siege-what-we-know-so-far-20170605-gwl0w9.html">a siege</a> in the Melbourne suburb of Brighton, during which Yacqub Khayre killed a man and took a woman hostage.</p>
<p>At the time of the siege, <a href="https://www.theguardian.com/australia-news/2017/jun/08/focussing-on-yacqub-khayres-parole-may-look-tough-on-but-it-misses-the-point">Khayre was on parole</a> for violent – but not terrorist – crimes. Shortly before Khayre was killed by police at the scene of the siege, he is alleged to have called the Seven Network <a href="http://www.smh.com.au/comment/overreaction-to-khayres-crimes-exactly-what-terrorists-seek-20170616-gwsdgu.html">and said</a>:</p>
<blockquote>
<p>This is for IS. This is for al-Qaeda.</p>
</blockquote>
<p>Islamic State (IS) <a href="https://www.theguardian.com/australia-news/2017/jun/05/police-shoot-gunman-dead-and-free-hostage-in-melbourne">subsequently claimed</a> the attack. </p>
<p>Khayre’s background is important in understanding why this attack produced a counter-terrorism response. In 2009, he was <a href="https://www.theguardian.com/australia-news/2017/jun/06/yacqub-khayre-melbourne-siege-gunmans-history-of-violent-and-drugs">arrested and charged</a> with terrorism offences in relation to the Holsworthy Barracks plot. Even though he was acquitted at trial, Khayre was tainted by the perceived association with terrorism. </p>
<p>COAG’s proposed new laws will capture this type of person. As <a href="https://www.pm.gov.au/media/2017-06-09/press-conference-opening-remarks-coag-leaders-meeting">Prime Minister Malcom Turnbull</a> put it:</p>
<blockquote>
<p>Violent criminals with terrorist links should not be walking the streets. They belong in jail.</p>
</blockquote>
<h2>The COAG proposals</h2>
<p>Under <a href="https://www.pm.gov.au/media/2017-06-09/press-conference-opening-remarks-coag-leaders-meeting">the COAG proposals</a>, states and territories will be required to:</p>
<blockquote>
<p>… strengthen their laws to ensure that there will be a presumption that neither bail nor parole will be granted to those who have demonstrated support for or have links to terrorist activity. </p>
</blockquote>
<p>Decisions on parole for those with a terrorism link will be taken out of the hands of the parole authorities. Instead, they will be the responsibility of state attorneys-general.</p>
<p>There are no clear details yet on how the legislation will define “links to” terrorist activity, or what behaviours will be captured by “demonstrating support for terrorist activity”. However, it seems likely that having associated with known or convicted terrorists in the past, or having been investigated for terrorism offences, will be covered. </p>
<p>So, had these measures been in existence when Khayre came up for parole, he would not have been released early from his sentence for violent crimes, and could not have carried out his attack.</p>
<h2>Restricting bail and parole</h2>
<p>Restrictions on bail and parole are not unusual in the terrorism context.</p>
<p>In the UK, <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/592570/pace-code-h-2017.pdf">bail is automatically denied</a> to those arrested without warrant on suspicion of being a terrorist. </p>
<p>The blanket ban on bail is relatively uncontroversial. But both the <a href="http://tna.europarchive.org/20100419081706/http:/security.homeoffice.gov.uk/news-publications/publication-search/legislation/terrorism-act-2000/operation-pathway-report?view=Binary">two</a> <a href="https://terrorismlegislationreviewer.independent.gov.uk/wp-content/uploads/2013/04/report-terrorism-acts-2011.pdf">former</a> independent reviewers of terrorism legislation, and the UK’s <a href="https://www.publications.parliament.uk/pa/jt200910/jtselect/jtrights/86/8608.htm#a16">Joint Committee on Human Rights</a>, have called for changes to allow terrorist suspects to apply for bail. The government has consistently <a href="https://terrorismlegislationreviewer.independent.gov.uk/wp-content/uploads/2013/04/report-terrorism-acts-2011.pdf">rejected these calls</a> on the grounds that denying bail to terrorist suspects is operationally useful, and has not been found to breach the right to liberty and security guaranteed in the <a href="http://www.echr.coe.int/Documents/Convention_ENG.pdf">European Convention on Human Rights</a>.</p>
<p>Under a <a href="https://www.gov.uk/government/news/new-sentencing-measures-to-take-effect-next-month">new law</a> enacted in the UK in 2015, terrorist prisoners are no longer automatically entitled to receive parole once they have served 50% of their prison sentence. </p>
<p>Those convicted of terrorism offences are now required to undergo a risk assessment prior to parole being granted. They will only be released early on parole if the Parole Board decides they no longer represent a risk to the public.</p>
<p>However, the new laws COAG has proposed for Australia go far beyond those in the UK. They will restrict parole and bail to those merely associated in some way with terrorism, even when they have not be arrested for – or convicted of – a specific terrorism offence. </p>
<p>This is a significant expansion of Australia’s already extensive anti-terrorism regime.</p>
<h2>Existing post-sentence restrictions</h2>
<p>Two regimes already exist to prevent convicted terrorists from being released unsupervised back into the Australian community. </p>
<p>The <a href="https://www.ag.gov.au/NationalSecurity/Counterterrorismlaw/Pages/ControlOrders.aspx">control order regime</a>, which was introduced in <a href="https://www.legislation.gov.au/Details/C2006C00754">2005</a>, was amended in <a href="https://www.legislation.gov.au/Details/C2015C00568">2014</a> to enable a control order to be issued on the ground that a person has been convicted of a terrorism offence. </p>
<p>Once a control order has been issued, controlees are subject to a range of obligations, prohibitions and restrictions. This includes restrictions on movement and communications. Controlees can also be required to wear a tracking device and report to the police at regular intervals.</p>
<p>Second, under a <a href="https://www.legislation.gov.au/Details/C2016A00095">newly commenced regime</a>, a terrorist offender can be detained in prison under a continuing detention order at the end of their sentence if the court is “satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious [terrorism] offence if the offender is released into the community”, and:</p>
<blockquote>
<p>… there is no other less restrictive measure that would be effective in preventing the unacceptable risk.</p>
</blockquote>
<p>A continuing detention order can last for up to three years, and may be renewed at the end of its duration. It is a possibility that a convicted terrorist may never be released from prison.</p>
<h2>Delaying the inevitable?</h2>
<p>Neither of these regimes would have been applicable to Khayre, as he was not on parole for a terrorism offence. However, the police also had no specific intelligence that he posed a terrorist threat. </p>
<p>It is possible that his attack was spontaneous, rather than planned. It is also possible therefore, that Khayre would always have carried out this tragic act. </p>
<p>So, even if COAG’s proposed new laws had been in effect and Khayre had been refused parole, he would eventually have been released from prison after having served his full sentence.</p>
<p>Turnbull <a href="https://www.pm.gov.au/media/2017-06-09/press-conference-opening-remarks-coag-leaders-meeting">has said</a> the new laws will be:</p>
<blockquote>
<p>… a vital element in keeping these people who are a threat to our safety, and the safety of our families, off the streets. </p>
</blockquote>
<p>But they will only do this during the relatively short period of time after someone would have been released, either on bail or parole. Once they have served their full sentence, they will be released into the community without any supervision. </p>
<p>It is important, therefore, that the government pays as much attention to the provision of rehabilitation and deradicalisation programs for those with potential terrorist links inside prison as it does on measures that appear tough on terrorism. </p>
<p>Restricting bail and parole to people like Khayre who have links to terrorist activity, but who have not been convicted of terrorist offences, only delays their inevitable release. If they pose a threat during the parole period, then without rehabilitation and deradicalisation, they will still pose a threat when released at the end of their sentence.</p><img src="https://counter.theconversation.com/content/79494/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jessie Blackbourn does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Proposed new laws will restrict parole and bail to those merely associated in some way with terrorism, even when they have not be arrested for – or convicted of – a specific terrorism offence.Jessie Blackbourn, Research Fellow, Centre for Socio-Legal Studies, University of OxfordLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/716972017-01-23T04:32:59Z2017-01-23T04:32:59ZAfter Bourke St, Victoria should not rush in on bail reform<figure><img src="https://images.theconversation.com/files/153794/original/image-20170123-11257-pfai4j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Daniel Andrews has announced reforms to Victoria's bail laws following the events in Melbourne's CBD last Friday.</span> <span class="attribution"><span class="source">AAP/Angus Livingston</span></span></figcaption></figure><p>The <a href="http://www.9news.com.au/National/2017/01/21/11/45/Premier-Daniel-Andrews-joins-mourners-to-lay-floral-tributes-for-Bourke-Street-Mall-victims">horrifying event</a> of last Friday in Melbourne’s CBD was yet another episode where a person used a vehicle as a weapon of destruction. It left five people, including a baby boy, dead. Another 30 people were injured, many seriously.</p>
<p>The alleged perpetrator, <a href="http://www.theage.com.au/victoria/bourke-street-mall-driver-identified-as-james-jimmy-gargasoulas-20170120-gtvs2m.html">Dimitrious Gargasoulas</a>, was revealed to be on bail in relation to another alleged offence six days before the attack, <a href="http://www.abc.net.au/news/2017-01-21/melbourne-cbd-incident-victoria-police-chief-defends-officers/8200206">despite opposition</a> from Victoria Police prosecutors. A bail justice (an out-of-hours volunteer honorary justice, like a justice of the peace) had granted Gargasoulas bail on January 14.</p>
<p>In response, Victorian Premier Daniel Andrews <a href="http://www.abc.net.au/news/2017-01-23/bourke-st-rampage-prompts-bail-law-review-in-victoria/8202300">has announced</a> that magistrates, rather than bail justices, will be exclusively deployed to hear bail applications in serious matters. Andrews has also directed the former director of public prosecutions, Paul Coghlan, to review Victoria’s bail system.</p>
<h2>Does the bail justice system work?</h2>
<p>Faced with cries to “do something” when a crisis erupts, governments, understandably, become risk-averse. So, it was quite predictable that the Andrews government’s first target in this case was the <a href="http://www.justice.vic.gov.au/utility/volunteering/bail+justice+position+description">bail justice system</a>. This uniquely Victorian initiative has <a href="http://www.emeraldinsight.com/doi/pdfplus/10.1108/JCRPP-08-2015-0035">drawn praise</a> for more than two decades.</p>
<p>While one can sympathise with those who are calling for review and change, we need to exercise caution before overhauling the operation of bail laws on the basis of one, albeit horrendous and tragic, case.</p>
<p>The bail justice system is one of the reasons usually given to explain why Victorians continue to enjoy the lowest remand-in-custody rates in Australia.</p>
<p>There is no evidence that that achievement has compromised safety for Victorians generally. Moreover, police officers <a href="http://www.lawreform.vic.gov.au/sites/default/files/Bail_Summary_web_version.pdf">actually make 90% of bail decisions</a>; magistrates or bail justices are only called in to adjudicate in the event of police denying bail.</p>
<p>There is also no reason to suspect that a magistrate would not have reached the same bail conclusion as the bail justice did in relation to Gargasoulas on January 14.</p>
<h2>Denying bail fills our prisons</h2>
<p>The denial of bail is also a <a href="https://theconversation.com/not-for-punishment-we-need-to-understand-bail-not-review-it-28651">significant factor</a> in the seemingly unstoppable rise in Australia’s prisoner numbers.</p>
<p>There was yet another significant rise in numbers last year. In the September quarter of 2016, the <a href="http://www.abs.gov.au/ausstats/abs@.nsf/mf/4512.0">average number</a> of full-time prisoners was 38,998. Of these, 32% (12,332) were unsentenced – that is, denied bail. </p>
<p>This takes Australia, for the first time in its modern history, out of the 15-30% range – which includes, for example, the UK, the US, Canada, Russia, Israel, Poland, New Zealand and Germany – and puts it into the 30-50% range found in Brazil, Thailand, Papua New Guinea, France, Kenya and Mexico. </p>
<p>The number of unsentenced prisoners in Australia increased by 22% from 2015 to 2016. This followed a <a href="http://www.abs.gov.au/ausstats/abs@.nsf/mf/4517.0">21% increase</a> from 2014 to 2015. Over the last five years, unsentenced prisoner numbers in Australia have increased 81%. The trend is financially and socially irresponsible and unsustainable.</p>
<p>Australians need to be a <a href="https://theconversation.com/when-bail-causes-outrage-dont-just-blame-the-courts-46084">little more forgiving</a> regarding the decisions of bail authorities when their decisions turn out to be ill-fated. Thousands of accused persons are granted bail each year over police objections with few adverse consequences. </p>
<p>Australia needs to be very careful not to allow the bail system – whether it is overseen by magistrates or lay justices – to become a political scapegoat at the hands of commentators exercising 20/20 hindsight.</p>
<p>Finally, we must be very careful not to rush to judgement and pretend that by tightening certain justice processes the problem will go away. Simply putting (and keeping) behind bars for months at a time everyone whom someone has deemed to be a risk to their family’s safety, their own safety or public safety is not the answer.</p><img src="https://counter.theconversation.com/content/71697/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre receives funding from the Criminology Research Council in relation to research into bail in Australia.</span></em></p>Australia needs to be very careful not to allow the bail system to become a political scapegoat at the hands of commentators exercising 20/20 hindsight.Rick Sarre, Professor of Law, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/574912016-04-13T20:15:47Z2016-04-13T20:15:47ZHow ‘tough on crime’ politics flouts death-in-custody recommendations<p>Whatever might be said about its successes and failures, it’s clear that 25 years after the Royal Commission into Aboriginal Deaths in Custody <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/">tabled its final report</a>, Australia has become much less compassionate, more punitive and more ready to blame individuals for their alleged failings. </p>
<p>Nowhere is this more clear than in our desire for punishment. A harsh criminal justice system – in particular, more prisons and people behind bars – has apparently become a hallmark of good government.</p>
<p>This wasn’t always the case. But it just so happened that the royal commission handed down its findings at a time when the politics of law and order was rapidly changing. </p>
<h2>Reform to intolerance</h2>
<p>The 1970s through to the late 1980s was a period of criminal justice reform. Decriminalisation of certain types of summary offences, such as public drunkenness and prostitution; a commitment to reducing prison numbers through the introduction of community service orders and other non-custodial sentencing options; the development of mental health services for offenders; specific programs for women prisoners; and improved conditions for prisoners more generally: these were <a href="http://researchonline.jcu.edu.au/24468/">key parts of the political agenda</a>. </p>
<p>But, by the late 1980s and early 1990s, changing political conditions were <a href="http://www.austlii.edu.au/au/journals/AUIndigLawRw/2011/2.html">no longer conducive to effective reform</a> of the criminal justice system.</p>
<p>By the 1990s, state and territory governments no longer spoke of reducing prison numbers, but rather of <a href="http://researchonline.jcu.edu.au/24468/">the need to lock more people away</a>. </p>
<p>This move toward “law and order” responses manifested in:</p>
<ul>
<li><p>increased police powers, particularly in relation to public order;</p></li>
<li><p>“zero tolerance”-style laws that <a href="http://www.austlii.edu.au/au/journals/UWALawRw/1999/10.pdf">increased the use of arrest or detention</a> for minor offences;</p></li>
<li><p><a href="http://www.aic.gov.au/media_library/publications/tandi_pdf/tandi138.pdf">mandatory prison sentences</a> for various offences (particularly in the Northern Territory and Western Australia);</p></li>
<li><p>controls over judicial discretion through the introduction of mandatory minimum terms of imprisonment; </p></li>
<li><p>a growing use of remand and <a href="https://theconversation.com/not-for-punishment-we-need-to-understand-bail-not-review-it-28651">restrictions on bail eligibility</a>; </p></li>
<li><p>longer terms of imprisonment for a range of offences, most recently <a href="https://www.crimejusticejournal.com/article/view/145">New South Wales’ so-called “one-punch laws”</a>; </p></li>
<li><p>more people <a href="http://researchonline.jcu.edu.au/24468/">sentenced to prison than non-custodial options</a>; and </p></li>
<li><p><a href="http://researchonline.jcu.edu.au/24468/">changes to parole and post-release surveillance</a>, which have made parole more difficult to obtain and easier to revoke.</p></li>
</ul>
<p>There was <a href="http://researchonline.jcu.edu.au/24468/">both a judicial and political perception</a> of the need for “tougher” penalties, often based on political expedience and media-fuelled public alarm over particular crimes. </p>
<p>While these administrative, legal and technical changes contributed to increasing prison numbers, they also reflected a less tolerant and more punitive approach to crime and punishment. </p>
<p>Put bluntly, the last 25 years have seen a spectacle of punishment most graphically illustrated in climbing imprisonment rates. And these changes were directly in opposition to the fundamental findings of the royal commission, which advocated a reduction in Indigenous imprisonment rates. </p>
<h2>Self-fulfilling practices</h2>
<p>The Australian prison estate <a href="http://www.pc.gov.au/research/ongoing/report-on-government-services">now costs well over A$3 billion a year</a> to operate. And building a prison <a href="http://researchonline.jcu.edu.au/24468/">can cost between $500 million and $1 billion</a>, depending on its location, security level and size. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/118520/original/image-20160413-23623-r623yj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/118520/original/image-20160413-23623-r623yj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=365&fit=crop&dpr=1 600w, https://images.theconversation.com/files/118520/original/image-20160413-23623-r623yj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=365&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/118520/original/image-20160413-23623-r623yj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=365&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/118520/original/image-20160413-23623-r623yj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=459&fit=crop&dpr=1 754w, https://images.theconversation.com/files/118520/original/image-20160413-23623-r623yj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=459&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/118520/original/image-20160413-23623-r623yj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=459&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Imprisonment rates in Australia are not the result of increased levels of crime, since increases in imprisonment rates have continued while crime rates have levelled or fallen in many categories of crime from 2000.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/710928003/1254166079/">♪ ~/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span>
</figcaption>
</figure>
<p>Such is the financial cost of our commitment to <a href="http://netk.net.au/Prisons/Prisons2.pdf">a system that’s widely ineffective</a> in reducing re-offending, and significantly contributes to the further marginalisation of those who are incarcerated.</p>
<p>These increases in imprisonment in Australia have been paralleled in other countries such as the United Kingdom, the United States, New Zealand and, more recently, Canada. It is <a href="http://researchonline.jcu.edu.au/24468/">arguably their embrace of the neoliberal agenda</a> that has led these countries down the path of a harsher approach to crime and punishment. </p>
<p>In contrast, European jurisdictions that have more social democratic and corporatist forms of government have <a href="http://www.cambridge.org/au/academic/subjects/law/criminal-law/prisoners-dilemma-political-economy-and-punishment-contemporary-democracies?format=PB&isbn=9780521728294">sustained more moderate criminal justice policies</a> and have relied less on exclusionary and punitive approaches to punishment.</p>
<p>But states that experienced a decline in principles and policies reflecting the welfare state and embraced neoliberal notions had a realignment of values and approaches that emphasised “deeds over needs”. </p>
<p>Their focus shifted from rehabilitative goals to an emphasis on deterrence and retribution. Individual responsibility and accountability increasingly became the core of the way justice systems responded to offenders. </p>
<p>Privatisation of institutions and services; widening social and economic inequality; and new or renewed insecurities around fear of crime, terrorism, “illegal” immigrants and racial, religious and ethnic minorities have all impacted the way their criminal justice systems operate. </p>
<p>Completing the cycle, these changes, in turn, <a href="http://oro.open.ac.uk/4385/2/The_globalisation_of_crime_control.pdf">fuelled social demands for authoritarian law-and-order strategies</a>.</p>
<h2>Human warehouses</h2>
<p>In understanding the use of imprisonment, one of the most important points to grasp is that a rising imprisonment rate is not directly or simply related to an increase in crime. </p>
<p>The use of prison is a function of government choices; it reflects government policy and legislation, as well as judicial decision-making. </p>
<p>Imprisonment rates in Australia are <a href="http://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4530.0Main+Features12013-14?OpenDocument">not the result of increased levels of crime</a>, since increases in imprisonment rates have continued while crime rates have levelled or fallen in many categories of crime from 2000. Similar patterns are <a href="https://en.wikipedia.org/wiki/The_Spirit_Level:_Why_More_Equal_Societies_Almost_Always_Do_Better">seen internationally</a>. </p>
<p>The growth of the law-and-order agenda has also resulted in far weaker ideological differentiation between major political parties on criminal justice policy. The most politically expedient response to crime is the promotion and implementation of the “toughest” approach. </p>
<p>While conservative political parties may have traditionally appeared to be “tougher” on crime and punishment, many Australian states and territories, such as New South Wales and <a href="http://www.app.unsw.edu.au/section-5-political-timeline-5">the Northern Territory</a>, have <a href="http://www.app.unsw.edu.au/nt-indigenous-imprisonment-rate-compared-australian-imprisonment-rate">sustained and large increases in imprisonment rates</a> under Labor governments.</p>
<p>In the process, prisons have become human warehouses for marginalised peoples, and most particularly Indigenous people. This point is graphically illustrated by the fact that Indigenous men are now <a href="http://www.abc.net.au/news/2015-12-03/fact-check-aboriginal-men-in-jail-and-university/6907540">more likely to be siting in a prison cell</a> than in a university classroom.</p>
<p><em>This article is part of <a href="https://theconversation.com/au/topics/royal-commission-special-report">a special report</a> marking the 25th anniversary of the Royal Commission into Aboriginal Deaths in Custody. <a href="https://theconversation.com/au/topics/royal-commission-special-report">Check out the rest of the package</a>.</em></p><img src="https://counter.theconversation.com/content/57491/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Chris Cunneen receives funding from the Australian Research Council competitive research grants scheme. </span></em></p>Australia has become less compassionate, more punitive and more ready to blame individuals for their alleged failings since the Royal Commission into Aboriginal Deaths in Custody.Chris Cunneen, Professor of Criminology, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/498942015-11-24T23:57:28Z2015-11-24T23:57:28ZVisa concerns for Australians living in Bali provide an unwanted reality check<p>More than 10,000 Australians are estimated to <a href="http://urbanet.curtin.edu.au/projects/aus-migration.cfm">live in Bali</a> all year, or for a substantial part of it. While many consider themselves to be permanent residents, they in fact have very little legal basis for this claim.</p>
<h2>The visa challenge</h2>
<p>The Indonesian government provides Australian nationals with a <a href="http://www.visabali.com/index.php">number of visa options</a> to support their “visit” to Bali. These include:</p>
<ul>
<li><p>Tourist visa – valid for 30 days (or 60 days if arranged in selected countries within Asia);</p></li>
<li><p>Business visa – valid for 60 days (or 12 months for a multiple-entry business visa);</p></li>
<li><p>Employment visa – valid for one year and must be sponsored by an Indonesian-based company;</p></li>
<li><p>Social-cultural visa – valid for 60 days and can be extended monthly to a maximum of six months. Visas must be sponsored by an Indonesian citizen;</p></li>
<li><p>Family/dependent visa; and</p></li>
<li><p>Retirement visa – valid for one year and can be extended each year for up to five years.</p></li>
</ul>
<p>Beyond these visa options, there is little scope for Australian nationals to achieve permanent resident status. While there is a <a href="http://aifis.org/wp-content/uploads/2011/08/kitas_kitap.pdf">permanent residence permit</a>, it is available only for a five-year period.</p>
<p>Australian expats have adopted a range of strategies for securing and renewing their short-term visas in order to live year-round in Bali. One significantly popular approach sees expats leave Bali for a short period – often a few days – before applying for a new visa upon re-entry. Longer-term members of the expat community have reportedly used this strategy for many years.</p>
<p>However, a recent decision by the Indonesian Immigration Office looked set to present challenges to the widely practised visa renewal method. Initially, it looked like it may prevent many Australians from living “permanently” in Bali. It is unclear if the directive has been enforced, or whether it may have been <a href="http://www.balidiscovery.com/messages/message.asp?Id=12622">revoked</a>.</p>
<p>Under the initial directive, from October 20 until December 30, 2015, visitors to Indonesia – entering through Denpasar International Airport – will be <a href="http://balipedia.com/bali-news/immigration-cracking-down-on-visa-runs">denied entry</a> if they had previously entered the country twice in less than one year and been issued a visa on arrival.</p>
<p>The directive indicates that the action is in response to complaints from tourism organisations. The complaints primarily focus on the increasing number of expats working illegally in tourism businesses in Bali. </p>
<p>A <a href="http://balipedia.com/bali-news/immigration-cracking-down-on-visa-runs">translation</a> of the directive specifically identifies that tourism organisations are concerned that expats have been working illegally as waiters, tour guides and scuba instructors, and also providing concierge services for tours and businesses.</p>
<p>This measure is targeted at curbing the number of foreigners working illegally in Bali. But Australians who “permanently” live in Bali could also be facing an unwanted reality check regarding their rights to enter – and even remain in – Bali.</p>
<h2>Permanent residents or temporary visitors?</h2>
<p>Indonesia’s shifting approach on immigration will force Australian expats who renew their visas through frequent travel to revisit their plans.</p>
<p>A <a href="http://onlinelibrary.wiley.com/doi/10.1111/1745-5871.12155/pdf">recent survey</a> of Australians living in Bali revealed that, from a sample of 185 people, 68% renewed their visas by regularly travelling out of Bali. Those who did not travel out of Bali typically held retirement or business visas, renewing them through a local agent.</p>
<p>The survey asked Australian expatriates why they had moved to, and how they felt about living in, Bali. People fundamentally made a conscious decision to move to Bali to achieve a lifestyle they felt would not be available to them in Australia. </p>
<p>The distinct characteristics of Bali’s natural and cultural environment were the major factors drawing people to it. The lower living and housing costs were also important in influencing decisions to move.</p>
<p>Importantly, participants in the study identified Bali as their primary home, where their social networks and activities were based and, in some cases, where they achieved their main income. Irrespective of the type of visa they held, many had invested in property and become engaged in community activities.</p>
<p>The population of Australians living in Bali continues to grow. However, the directive from the Indonesian Immigration Office serves as a reminder of the reality of their situation. Australian expats are not “permanent” residents of Indonesia. While they might consider Bali to be their home, they are only temporary visitors.</p>
<hr>
<p><em>This piece has been amended since publication.</em></p><img src="https://counter.theconversation.com/content/49894/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amanda Davies does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A recent decision by the Indonesian Immigration Office is set to present challenges to the widely practiced, and popular, ‘visa run’ renewal method.Amanda Davies, Senior Lecturer in Geography and Social Demography, Curtin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/460842015-08-17T04:01:09Z2015-08-17T04:01:09ZWhen bail causes outrage, don’t just blame the courts<p>On December 12, 2013, Man Haron Monis, having been charged with being an accessory to murder and facing multiple sexual assault charges, was granted bail. A year later, while still on bail, Monis began his <a href="https://theconversation.com/au/topics/sydney-siege">Lindt Cafe siege</a>, with tragic consequences. </p>
<p>The Guardian <a href="http://www.theguardian.com/australia-news/2015/aug/12/police-said-prosecutor-on-man-haron-monis-bail-hearing-terrible-court-told">reported</a> last week that the head of the New South Wales homicide squad had relayed to his superior a hearsay opinion that the prosecutor in the 2013 bail hearing was “terrible and clearly not across the brief”.</p>
<p>The <a href="http://www.abc.net.au/news/2015-08-17/inquest-into-sydney-lindt-cafe-attack-resumes/6690232">resumption</a> this week of the inquest into the siege, with a focus on why Monis was on bail at the time, is likely to intensify scrutiny of this issue. It is possible that there may be a witch-hunt in pursuit of the prosecutor, who may or may not have fought hard enough to keep Monis behind bars, or even the magistrate who acceded to the submissions of counsel for Monis to be granted bail. </p>
<h2>Why we cannot afford a witch-hunt</h2>
<p>Any such witch-hunt should be resisted for three important reasons.</p>
<p>The first is that governments in these circumstances, steeled by populist fervour, often go into “risk-averse” mode and make it more likely that persons charged with serious offences remain behind bars. If that happens, prisoner numbers will rise. It is well known that when governments <a href="https://theconversation.com/not-for-punishment-we-need-to-understand-bail-not-review-it-28651">focus on isolated examples</a>, often <a href="https://www.crimejusticejournal.com/article/view/84">under pressure</a> from the media and public, <a href="https://www.crimejusticejournal.com/article/view/181">short-sighted justice policy</a> usually results. </p>
<p><a href="http://www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/4512.0Media%20Release1March%20Quarter%202015?opendocument&tabname=Summary&prodno=4512.0&issue=March%20Quarter%202015&num=&view=">Prisoner numbers</a> in Australia are already the highest they have ever been. The <a href="http://www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/4512.0Main%20Features1March%20Quarter%202015?opendocument&tabname=Summary&prodno=4512.0&issue=March%20Quarter%202015&num=&view=">rate of imprisonment</a> of Australians (194 per 100,000 population) is at a <a href="http://www.abs.gov.au/ausstats/abs@.nsf/mf/4517.0">ten-year high</a>. A quick look at imprisonment rates in <a href="https://theconversation.com/nordic-prisons-less-crowded-less-punitive-better-staffed-12885">Scandinavia</a> and <a href="http://prisonwatchuk.com/2015/06/11/uk-prison-population-stats/">Western Europe</a> tells us that you don’t need high levels of imprisonment to keep crime at bay.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/92024/original/image-20150817-5117-xh6sh7.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/92024/original/image-20150817-5117-xh6sh7.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/92024/original/image-20150817-5117-xh6sh7.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=545&fit=crop&dpr=1 600w, https://images.theconversation.com/files/92024/original/image-20150817-5117-xh6sh7.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=545&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/92024/original/image-20150817-5117-xh6sh7.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=545&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/92024/original/image-20150817-5117-xh6sh7.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=685&fit=crop&dpr=1 754w, https://images.theconversation.com/files/92024/original/image-20150817-5117-xh6sh7.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=685&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/92024/original/image-20150817-5117-xh6sh7.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=685&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The number of unsentenced prisoners has continued to rise across the country.</span>
<span class="attribution"><a class="source" href="http://www.abs.gov.au/ausstats/abs@.nsf/mf/4512.0">ABS</a></span>
</figcaption>
</figure>
<p>The second reason, and one allied to the first, is that <a href="http://www.abs.gov.au/ausstats/abs@.nsf/mf/4512.0">more than 9000</a> adult prisoners are in custody because they have been refused bail. That represents about one-quarter of Australia’s total adult prison population. This proportion has grown from 14% two decades ago, and is on an unsustainable trajectory.</p>
<p>There are significant costs to the state (the need for more prison beds) and to remandees (for example, loss of employment and family disruption) if these trends continue.</p>
<p>The third reason is that our feelings of anger or frustration toward specific justice personnel may be entirely misplaced. There has long been a suspicion that what happens at the bail hearing is only the tip of the iceberg; the decision to remand a person in custody is not simply dependent upon a prosecutor’s preparation or a magistrate’s discretion, but rather is an outcome that emerges from a complex array of social and legal dynamics. </p>
<p>These dynamics will vary between jurisdictions and over time. How else could one explain the anomalous position in the <a href="http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0%7E2014%7EMain%20Features%7ENorthern%20Territory%7E10021">Northern Territory</a>, which has a rate of remand that is consistently three to four times the rate found in the rest of Australia? And why has South Australia had the <a href="http://indaily.com.au/news/2014/12/12/states-prisons-full-third-remand/">highest remand proportion</a> of any jurisdiction in Australia for more than a decade?</p>
<p>If remand outcomes were simply a consequence of prosecutorial practice, or magistrates’ choices, then we would have to conclude that Northern Territory and South Australian magistrates were somehow different from those found in the rest of Australia, given that bail legislation is relatively uniform. That is clearly not the case. So what else is at work here?</p>
<h2>What drives the numbers remanded in custody?</h2>
<p>A <a href="http://www.aic.gov.au/publications/current%20series/rpp/21-40/rpp23.html">number</a> of <a href="http://www.criminologyresearchcouncil.gov.au/reports/2005-11-remand.html">studies</a> have been <a href="http://www.aic.gov.au/publications/current%20series/tandi/301-320/tandi310.html">conducted</a> over the last 15 years to uncover the true drivers of the numbers remanded in custody. The research has revealed important additional factors, over and above the accountability of bail authorities, and whether or not the prosecutor was “across the brief”.</p>
<p>One driver relates to police practices. A person does not get to a court bail hearing unless a decision has first been made to arrest them (rather than summons them) and to refuse them police bail. The manner in which this occurs around Australia varies widely, especially in the way some police in particular jurisdictions use custodial remand as a short-term incapacitation strategy.</p>
<p>A second driver is found when one considers the typical characteristics of those charged. Arrested persons are today consistently found to be affected by drugs and alcohol or to suffer mental health problems. In some jurisdictions, resources to house and care for accused persons with specific needs are far more available. The likelihood of bail is therefore greater. </p>
<p>Any justice system that can draw on a wide range of community resources – such as access to affordable housing, mental health services and drug rehabilitation – will enjoy lower remand-in-custody rates.</p>
<p>Thus the key to understanding remand-in-custody fluctuations is more likely to be discovered outside the courtroom than inside. The decisions made by the non-judicial participants in the process, especially police decision-makers and the information that they choose to provide to the courts, and parliamentarians, who may or may not choose to spend on resources for accused persons, are as crucial to the outcome as any decision made by a magistrate.</p>
<p>What this means is that we need to be a little more forgiving regarding the attentiveness (or otherwise) of the public prosecutor and the decision of the magistrate to grant Monis bail in December 2013. Along the way we need to remind ourselves that we owe it to all accused persons, who are entitled to the presumption of innocence, to protect them from becoming scapegoats in a political exercise driven by risk-aversion.</p><img src="https://counter.theconversation.com/content/46084/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre's research into remand in custody (with Sue King and David Bamford) was conducted with two grants from the Criminology Research Council (administered by the Australian Institute of Criminology).</span></em></p>The spotlight is on a 2013 decision to grant bail to Man Haron Monis, the man responsible for the Lindt Cafe siege a year later. It must be hoped risk-averse politicians can avoid knee-jerk responses.Rick Sarre, Professor of Law, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/391852015-04-19T20:08:29Z2015-04-19T20:08:29ZState of imprisonment: if locking ‘em up is the goal, NT’s a success<p><em>This article is part of The Conversation’s series, <a href="https://theconversation.com/au/topics/state-of-imprisonment">State of Imprisonment</a>, which provides snapshots of imprisonment trends in each state and territory. The intention is to provide a basis for informed public discussion of imprisonment policies and of the costs and consequences for Australia of rising rates of incarceration.</em></p>
<hr>
<p>If I were asked to outline a plan to ensure increasing incarceration, both generally and of vulnerable groups, I would just point to the Northern Territory of Australia. No need to <a href="https://theconversation.com/prisons-policy-is-turning-australia-into-the-second-nation-of-captives-38842">look to the United States</a>; their <a href="http://www.bjs.gov/content/pub/pdf/p13.pdf">adult imprisonment rate</a> is only 623 per 100,000. The NT <a href="http://www.nt.gov.au/justice/policycoord/researchstats/documents/2013-14%20NTCS%20Annual%20Statistics.pdf">imprisonment rate</a> sits at 847 per 100,000 adults, nearly four times that of its nearest Australian rival, Western Australia.</p>
<p>Only <a href="http://www.bjs.gov/content/pub/pdf/p13.pdf">36% of the US prison population is African American and 22% Hispanic</a>. Last year in the Territory, 86% of those in prison and 96% of those in juvenile detention were Indigenous. </p>
<p>The daily average number of prisoners has more than doubled in the last 20 years. By 2010 the growth in the NT prison population necessitated the construction of a 1,000-bed, <a href="http://newsroom.nt.gov.au/mediaRelease/9522">$500 million jail</a>.</p>
<p>With its opening, there is one prison bed for every 103 adults. Despite a recent report of lower-than-anticipated increases in prisoner numbers, based on growth over the last five years the new jail will reach capacity by 2018. </p>
<h2>Adopt punitive policing and sentencing policies</h2>
<p>As with many jurisdictions, “tough on crime” rhetoric dominates in the Territory. The mandatory sentencing regime introduced by the Country Liberal Party in the 1990s kick-started significant growth in prisoner numbers. Daily averages grew by <a href="http://www.nt.gov.au/justice/policycoord/researchstats/documents/2013-14%20NTCS%20Annual%20Statistics.pdf">31% over just two years</a>.</p>
<p>Despite early promise, including removing much of the mandatory sentencing regime, the decade-long Labor government also contributed significantly to these trends. Restrictive bail laws have increased numbers in custody, with 38% of those entering an adult prison and 60% of those entering youth detention unsentenced on reception. </p>
<p>The remaining mandatory sentencing provisions, for serious violence and aggravated property offences, mean that prison is the only option available in many cases. </p>
<p>And while undoubtedly more people are in prison, our community is certainly not safer. Recorded assaults <a href="http://www.pfes.nt.gov.au/Police/Community-safety/Northern-Territory-crime-statistics/Statistical-publications.aspx">increased by 24% between 2010 and 2014</a>. </p>
<p>The ineffectiveness of jail in addressing violent crime (indeed most crime) is also glaringly apparent when <a href="http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0%7E2014%7EMain%20Features%7EPrisoner%20characteristics,%20states%20and%20territories%7E10000">71% of adult prisoners</a> have served a previous prison term.</p>
<h2>Deny Indigenous people access to appropriate services</h2>
<p>Despite attempts to Close the Gap, Indigenous people living in remote areas of the Territory do not enjoy access to the same services as non-Indigenous people living in similarly sized communities.</p>
<p>Growing up in a town of 60 in rural Queensland, my family had access to a range of government services. These included a post office, a permanently staffed police station, a local primary school and a high school a short bus ride away. I cannot think of a similarly sized Indigenous community enjoying such facilities. </p>
<p>This lack of services has direct and indirect effects on rates of Indigenous incarceration. Without identification requirements for a driver’s licence, with no licensing or vehicle registration services and no public transport, Indigenous people, far more so than non-Indigenous people, are jailed for minor driving offences. While recent reforms have reduced these numbers, a not insignificant number of Aboriginal people have a criminal record for such offences. </p>
<p>Community-based orders are often unavailable in remote areas as there are no programs or Correctional Services staff to supervise them. Due to overcrowding and poor housing, Aboriginal offenders are also unlikely to meet the suitability requirements of a Home Detention Order (HDO). Only <a href="http://www.nt.gov.au/justice/policycoord/researchstats/documents/2013-14%20NTCS%20Annual%20Statistics.pdf">six Indigenous people received a HDO</a> in 2013-14.</p>
<p>While access to in-prison programs is low overall, access to culturally appropriate programs is even lower. With a few notable exceptions, programs are developed using Western psychological models and evidence about non-Indigenous offenders. Their suitability and success for Indigenous offenders are rarely evaluated. </p>
<p>Yet it’s ironically true, as one senior Corrections official once remarked, that it’s hard to see why we have special programs for Indigenous prisoners. Indeed, Indigenous-specific programming is all that’s needed.</p>
<h2>Embrace alcohol consumption as a core social value</h2>
<p>If largely unfettered access to alcohol is to be a <a href="http://www.abc.net.au/news/2013-05-23/giles-defends-nt-drinking-culture-as-core-social-value/4708310">part of the great Territory lifestyle</a>, then Territorians must accept that high levels of violence are here to stay. The association between excessive alcohol consumption and violence is long established, At least <a href="http://www.pfes.nt.gov.au/Police/Community-safety/Northern-Territory-crime-statistics/Statistical-publications.aspx">60% of all violent assaults</a> in the Territory are alcohol-related.</p>
<p>Public health education and evidence-based programs can play important roles in reducing alcohol-related harm. While such programs should be funded appropriately, supply restrictions must also form part of our response.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/78362/original/image-20150417-27280-chul3h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/78362/original/image-20150417-27280-chul3h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=616&fit=crop&dpr=1 600w, https://images.theconversation.com/files/78362/original/image-20150417-27280-chul3h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=616&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/78362/original/image-20150417-27280-chul3h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=616&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/78362/original/image-20150417-27280-chul3h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=774&fit=crop&dpr=1 754w, https://images.theconversation.com/files/78362/original/image-20150417-27280-chul3h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=774&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/78362/original/image-20150417-27280-chul3h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=774&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">In 2014, 86% of adult prisoners and 97% of those in juvenile detention were Indigenous.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/publik16/2780718220/in/photolist-5eHUDA-4Vz93E-4TBaGP-5AcJF9-4TBaQz-4QGVHa-7Tx3yN-4Vz97w-4Vz9dW-9Bv4ea-oo5EgG-5sC3yr-b4tg2F-b4tdRx-4BVdfT-aU5uzZ-ecLHtM-5hkJAK-4NVcft-6jNzK8-dYWPXh-LMun4-6FAyyN-r9cuE-dYWPZC-dYWPXY-dYR87r-dYWQ1o-5prNy6">flickr/publik16</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-sa/4.0/">CC BY-NC-SA</a></span>
</figcaption>
</figure>
<p>The 2007 NT <a href="https://theconversation.com/whats-data-got-to-do-with-it-reassessing-the-nt-intervention-4993">National Emergency Response</a> introduced identification requirements for alcohol purchases above $100 but coupled this with criminalising those who consumed alcohol on Aboriginal land. The Banned Drinker Register showed early promise through a system that prevented alcohol purchases by those on certain court orders, but partisan politics brought it to an end in 2012. </p>
<h2>Ignore evidence of what works in child protection and youth justice</h2>
<p>Based on the growing body of evidence that child protection involvement, even notification to a child welfare system, is linked to involvement in the criminal justice system, there are increasingly troubled times ahead. </p>
<p><a href="http://www.childrenandfamilies.nt.gov.au/library/scripts/objectifyMedia.aspx?file=pdf/94/58.pdf&siteID=5&str_title=DCF%20Annual%20Report%202013%20-%2014.pdf">In the last year</a>, child protection notifications increased by 30% and the number of Indigenous children in out-of-home care by 26%. At the same time, the rate of completed child protection investigations decreased. </p>
<p>Youth justice fares equally badly. Diversionary programs are underfunded and exclude young people without a responsible adult. There are few programs for young people in detention or in the community, particularly in areas such as violent and sexual offending. </p>
<p>The failure of governments to meet the need for a suitable youth facility means young people are now locked up in a jail deemed unfit for adults; Correctional Services described the facility as <a href="http://www.territorystories.nt.gov.au/bitstream/10070/254131/32/NTN29NOV14PG017-MAI-COLOUR-PRIMARY.PDF">“fit only for a bulldozer”</a>.</p>
<p>Both systems are effectively driving young people’s further and deeper involvement in the criminal justice system. Young people are remanded in custody, sometimes for weeks, because no parent or family member comes to court, yet child protection maintains the young person is not in need of care. </p>
<p>Criminal charges are routinely brought against young people in residential facilities, rather than working through behavioural issues as we might in our own homes. Children in care have unpaid fines incurring interest and attracting further penalty, with no way of paying off these debts. </p>
<p>I offer no solutions here. When we decide we want different outcomes – a safer community, fewer people in jail – those solutions can be found in the thousands of words spoken and written by dozens of Aboriginal people and organisations, lawyers, academics and others, over many, many years. </p>
<hr>
<p><em>You can read other articles in the State of Imprisonment series <a href="https://theconversation.com/au/topics/state-of-imprisonment">here</a>.</em></p>
<hr>
<p><em>Pippa will be on hand for an author Q&A between 10 and 11am AEST on Tuesday April 21. Post your questions in the comments section below.</em></p><img src="https://counter.theconversation.com/content/39185/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Pippa Rudd has held senior positions in both corrections and child protection in the Northern Territory, as well as working as Chief of Staff and advisor to a number of Northern Territory Ministers. </span></em></p>The Northern Territory stands out for having one of the highest imprisonment rates in the world - much higher even than in the US - and it’s hard to argue that this does the community much good.Pippa Rudd, PhD Researcher, Menzies School of Health ResearchLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/389052015-04-12T20:32:18Z2015-04-12T20:32:18ZState of imprisonment: Victoria is leading the nation backwards<figure><img src="https://images.theconversation.com/files/77180/original/image-20150407-26496-q46s17.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In recent times, Victoria has reverted to the punitive approach that once filled the Old Melbourne Gaol, with little thought for the long-term consequences.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/easternblot/3725387711/">Flickr/Eva</a>, <a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span></figcaption></figure><p><em>This article is part of The Conversation’s series, <a href="https://theconversation.com/au/topics/state-of-imprisonment">State of Imprisonment</a>, which provides snapshots of imprisonment trends in each state and territory. The intention is to provide a basis for informed public discussion of imprisonment policies and of the costs and consequences for Australia of rising rates of incarceration.</em></p>
<hr>
<p>Victoria was once <a href="https://www.ombudsman.vic.gov.au/getattachment/280f4a06-5927-4221-bf64-d884ba6abaf9//publications/discussion-papers/discussion-paper-investigation-into-the-rehabilita.aspx">the most progressive state</a> when it came to imprisonment. The state was characterised by low imprisonment rates and innovative corrections policy. Victoria now leads the nation with the highest rate of growth in imprisonment.</p>
<p>The Victorian imprisonment rate <a href="http://www.theage.com.au/victoria/victorian-prison-numbers-surged-under-napthine-20141211-1258jw.html">increased by 40.5%</a> between 2009 and 2014. The next highest growth, in South Australia, was 26%.</p>
<p>The impact on the state budget is huge. The <a href="https://www.sentencingcouncil.vic.gov.au/publications/victorias-prison-population-2002-2012">real recurrent cost</a> of prisons (in 2011-12 dollars) for every resident of Victoria has grown from A$56.47 per year in 2003/4 to A$83.95 in 2013/14. Taking into account inflation and population growth, this is a 49% increase.</p>
<p>Having more people in prison ultimately has <a href="http://www.smartjustice.org.au/cb_pages/files/SMART_MorePrisons%20Final%20Revised%202014.pdf">negative impacts on community safety</a>. The long-term <a href="https://www.dss.gov.au/sites/default/files/documents/05_2012/op10.pdf">intergenerational impacts</a> are devastating. </p>
<p>In 2014, Victoria’s prisons <a href="http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0%7E2014%7EMain%20Features%7EVictoria%7E10016">held 6,112 people</a> compared to 3,624 in 2004. This rapid growth is anticipated to continue, with the prison population <a href="https://www.ombudsman.vic.gov.au/getattachment/280f4a06-5927-4221-bf64-d884ba6abaf9//publications/discussion-papers/discussion-paper-investigation-into-the-rehabilita.aspx">projected to reach 7,169</a> by June 2015.</p>
<h2>Capacity and costs are expanding</h2>
<p>The new Labor government’s minister for police and corrections, Wade Noonan, <a href="http://www.theage.com.au/victoria/victorian-prison-numbers-surged-under-napthine-20141211-1258jw.html">has recognised</a> that this growth has resulted in a system “under enormous pressure”. </p>
<p>The response to this pressure under the previous Napthine government was to invest in prison capacity.</p>
<p>In the 2013-14 financial year, <a href="https://www.ombudsman.vic.gov.au/getattachment/280f4a06-5927-4221-bf64-d884ba6abaf9//publications/discussion-papers/discussion-paper-investigation-into-the-rehabilita.aspx">938 new prison beds</a> were opened. All existing prisons have expansion plans. In September 2014, the previous government signed a A$670 million contract for construction of a private medium-security men’s prison contracted for 1000 beds, but with a capacity of up to 1300. It is <a href="http://archive.premier.vic.gov.au/2014/media-centre/media-releases/10974-coalition-government-signs-contract-for-new-ravenhall-prison.html">expected to be in operation</a> by 2017. </p>
<p>This is a system that is expanding exponentially, with profound consequences for the community. What are the reasons for this increase?</p>
<h2>What is driving up imprisonment rates?</h2>
<p>The rapid growth in the imprisonment rate is not directly correlated with increased crime rates. The most recent Victoria Police <a href="http://www.police.vic.gov.au/content.asp?a=internetBridgingPage&Media_ID=72176">crime statistics</a> show that the 2013/2014 crime rate was 1.6% lower than 10 years ago. Hence, it isn’t crime but other policy and practice changes that are driving imprisonment trends.</p>
<p>The four critical changes have been:</p>
<ol>
<li><p>Sentencing: imprisonment <a href="https://www.sentencingcouncil.vic.gov.au/publications/victorias-prison-population-2002-2012">terms have increased</a>.</p></li>
<li><p>Parole: changes to parole from September 2013 resulted in many <a href="https://www.sentencingcouncil.vic.gov.au/publications/victorias-prison-population-2002-2012">parole applications being rejected</a> and therefore longer terms of imprisonment. Plus <a href="http://artsonline.monash.edu.au/imprisonmentobservatory/comparative-peneology/current-projects/">evidence is emerging</a> that increasingly stringent parole conditions and/or more severe punishments for breach of parole are resulting in many prisoners electing to serve their full sentence in prison instead of applying for parole.</p></li>
<li><p>Bail: the <a href="http://www.austlii.edu.au/au/legis/vic/bill/bab2013131/">Bail Amendment Act</a> 2013 brought about significant changes, including more rigorous oversight of charged persons and the introduction of offences for contravening bail conditions or committing an indictable offence while on bail, each punishable by up to three months imprisonment, creating the potential for further charges and longer sentences. </p></li>
<li><p>Suspended sentences: Victoria <a href="http://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence">fully abolished</a> the suspended sentence – a term of imprisonment that is fully or partially suspended for a specified period – in September 2014. The legal fraternity <a href="http://www.theage.com.au/comment/abolition-of-suspended-sentencing-will-jail-the-wrong-people-20140814-103waz.html">has criticised</a> the abolition of this sentencing option as a “mistake” that will lead to “a more sustained increase in the prison population … in the crime rate [and possibly] … the rate of recidivism”. </p></li>
</ol>
<h2>Who feels the impacts?</h2>
<p>Imprisonment affects the whole community. It is expensive and <a href="http://www.sentencingcouncil.vic.gov.au/sites/default/files/publication-documents/Does%20Imprisonment%20Deter%20A%20Review%20of%20the%20Evidence.pdf">fails to increase community safety</a> in the long run. The broader impacts are wide-reaching and long-term.</p>
<p>However, the data reveals that some key groups have been affected more significantly by the upward trend in imprisonment in Victoria. We highlight two. </p>
<p><strong>Indigenous Australians</strong></p>
<p>The rate of imprisonment for Aboriginal and Torres Straight Islander (ATSI) people in Victoria is 12.6 times higher than non-ATSI people. While ATSI Australians make up <a href="http://www.abs.gov.au/websitedbs/censushome.nsf/home/vic-45?opendocument&navpos=620">0.7% of Victoria’s total population</a>, they represent <a href="http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0%7E2014%7EMain%20Features%7EAboriginal%20&%20Torres%20Strait%20Islander%20prisoner%20characteristics%7E10007">7.7% of the prison population</a>.</p>
<p>That proportion is not as high a level of over-representation as in other parts of Australia: for example, in New South Wales, Indigenous Australians comprise <a href="http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0%7E2014%7EMain%20Features%7ENew%20South%20Wales%7E10015">24% of the total prisoner population</a>, and <a href="http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0%7E2014%7EMain%20Features%7ENorthern%20Territory%7E10021">in the Northern Territory it is 86%</a>. However, it still reflects a disproportionate impact of prison expansion on Victoria’s Indigenous population. Indigenous imprisonment must be connected to the broader <a href="http://www.dpmc.gov.au/sites/default/files/publications/Closing_the_Gap_2015_Report_0.pdf">context of Indigenous disadvantage</a> across health, employment and education.</p>
<p><strong>Women</strong> </p>
<p>The imprisonment of women in Victoria has also grown disproportionally in the last decade, at a <a href="http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0%7E2014%7EMain%20Features%7ESex%7E10002">rate of 41%</a>. A quarter of the women’s prison population in Victoria is un-sentenced, meaning they are on remand.</p>
<p>Women prisoners have been found to be 1.7 times <a href="http://whv.org.au/static/files/assets/ed8eaf9a/Women_and_corrections_GIA.pdf">more likely to have a mental illness</a> than male prisoners. Non-Aboriginal women are significantly more likely than non-Aboriginal men to have attempted suicide.</p>
<p>It is well known that women are disproportionately <a href="https://www.ombudsman.vic.gov.au/getattachment/280f4a06-5927-4221-bf64-d884ba6abaf9/">affected by post-release homelessness</a> and that the majority have dependent children. Imprisonment exacerbates <a href="http://artsonline.monash.edu.au/imprisonmentobservatory/files/2014/09/Cairnlea-Evaluation-Report_2010.pdf">multiple challenges</a> – including mental health instability, inaccessible secure long-term accommodation and a limited likelihood of post-release employment – that significantly affect women and their children. Those problems often disrupt family reunions and the return of children to their mother’s custody. The result is that imprisonment can have devastating long-term impacts on women’s lives and the lives of their family members. </p>
<h2>Where do we go from here?</h2>
<p>Two important things have happened in Victoria. </p>
<p>The first is the change of government that occurred in November 2014. Labor, under Premier Daniel Andrews and Corrections Minister Noonan, has committed to investing in <a href="http://www.smartjustice.org.au/resources/SMART_Prevention.pdf">custodial and post-release prisoner support programs</a>. But <a href="http://www.theage.com.au/national/investigations/jury-out-on-labor-prison-plan-20150123-12w1rn.html">concerns remain</a> about what, if any, concrete policies will be put in place to arrest the state’s fast-rising rate of imprisonment. </p>
<p>The second is the Victorian <a href="https://www.ombudsman.vic.gov.au/News/Media-Releases/Media-Alerts/inv-into-provision-of-rehab-programs-for-offenders">Ombudsman’s investigation</a> “into the provision of rehabilitation programs and transitional services for offenders in Victoria”. Following the call for submissions (<a href="https://www.ombudsman.vic.gov.au/News/Media-Releases/Media-Alerts/Media-Release-Strong-response-to-prisons-discussio">29 were received</a>) and a report is due to be published in late 2015. </p>
<p>These are positive signs. What remains critical is to ensure Victorians are onside with innovation and meaningful reform at the policy and program level. These must be targeted to specific areas and informed by research in order to reduce imprisonment numbers, whilst improving our overall safety and well-being as a population.</p>
<hr>
<p><em>On Wednesday May 13, Monash Criminology is hosting a free public event, Beyond Imprisonment: innovation and reform opportunities for Victoria, which will build on issues raised in this article. Hosted by Maxine McKew, the forum will involve leading innovators in the area discussing what is possible for reform in Victoria. For more details and to register <a href="http://artsonline.monash.edu.au/criminology/beyond-imprisonment/">click here</a>.</em></p>
<p><em>You can read other articles in the series <a href="https://theconversation.com/au/topics/state-of-imprisonment">here</a>.</em></p><img src="https://counter.theconversation.com/content/38905/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Marie Segrave receives funding from the Australian Research Council and is a founder of the Imprisonment Observatory.</span></em></p><p class="fine-print"><em><span>Anna Eriksson receives funding from the Australian Research Council and is a founder of the Imprisonment Observatory.</span></em></p><p class="fine-print"><em><span>Emma Russell has been involved in the Centre for the Human Rights of Imprisoned People (CHRIP) project at Flat Out as a volunteer and in community organising with the Abolition Collective in Melbourne.</span></em></p>Victoria was once characterised by low imprisonment rates and innovative corrections policy. The state now has Australia’s highest rate of growth in imprisonment.Marie Segrave, Senior Lecturer, Criminology, Monash UniversityAnna Eriksson, Senior Lecturer in Criminology, Monash UniversityEmma Russell, PhD candidate in Criminology, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/286512014-07-03T01:55:48Z2014-07-03T01:55:48ZNot for punishment: we need to understand bail, not review it<p>Courts make hundreds of bail decisions every week but we rarely hear about them. In the past month in New South Wales, however, we have heard much about three high-profile decisions granting bail to: <a href="http://www.dailytelegraph.com.au/news/nsw/new-laws-allow-accused-wife-killer-steven-fesus-to-be-released-after-three-prior-refusals/story-fni0cx12-1226956685102">Steven Fesus</a>, accused of murdering his wife 17 years ago; Hassan “Sam” Ibrahim, charged with selling illegal firearms across western Sydney (bail was <a href="http://www.smh.com.au/nsw/sam-ibrahim-denied-bail-over-illegal-firearms-ring-20140627-zsnve.html">revoked on appeal</a>); and <a href="http://www.dailytelegraph.com.au/news/nsw/former-comanchero-boss-mick-hawi-released-from-lithgow-prison-on-bail-over-murder-charge/story-fni0cx12-1226967026696">Mahmoud Hawi</a>, charged with the murder of Peter Zervas during a brawl at Sydney Airport in 2009. </p>
<p>Each was granted bail under the <a href="http://www.austlii.edu.au/au/legis/nsw/consol_act/ba201341/">Bail Act 2013</a>, which came into force on May 20 this year. The allegations these men face are serious but at this stage they are precisely that: allegations. Media coverage of these cases has conflated the role of bail with that of guilt and a desire to condemn and punish. It is suggested the new laws are <a href="http://www.dailytelegraph.com.au/news/nsw/new-bail-laws-attorneygeneral-brad-hazzard-says-they-are-not-more-lenient-despite-accused-wife-killer-and-bikie-boss-out-on-the-streets/story-fni0cx12-1226964946939">“soft on crime”</a>.</p>
<p>The cases demonstrate no such thing. Yet rather than defend the Bail Act, the government has <a href="http://www.smh.com.au/nsw/mike-baird-announces-urgent-review-of-new-bail-laws-20140627-zso12.html">yielded to the media outrage</a> and <a href="http://www.lawlink.nsw.gov.au/lawlink/Corporate/ll_corporate.nsf/vwFiles/MR_14_Mike_Baird_and_Brad_Hazzard_Bail.pdf/$file/MR_14_Mike_Baird_and_Brad_Hazzard_Bail.pdf">announced a review</a> after only a month’s operation. This vote of “no confidence” in the laws <a href="http://www.smh.com.au/comment/bail-law-changes-in-nsw-need-to-consider-evidence-20140629-zsol9.html">is premature</a> and unfortunate.</p>
<h2>What is bail?</h2>
<p>The term comes from the French “bailler”, which means to take charge of, guard, control and ultimately to hand over and deliver. Originally, an accused was released into the custody of persons known as “sureties”, typically on the payment of a monetary sum. This was forfeited if the accused did not turn up at court.</p>
<p>Today, when a person is accused of a crime, he or she must be brought before a judge as soon as practicable after arrest. An application for bail may then be made, which can either be granted (with or without conditions) or denied. The critical point is that, at this stage, the person is only accused of a crime.</p>
<p>A cornerstone of our criminal justice system is that a person is presumed innocent until tried and convicted according to law. It is fundamental that a person should not be denied his or her liberty. Simply put, wherever possible people should be kept out of jail until they have been convicted – only then should punishment begin.</p>
<p>Two big problems converge when we move away from these principles. It is unfair and it is expensive. </p>
<p>Historically, using “cash bail” had a significant discriminatory effect on marginalised groups – the unemployed, young people and Indigenous people – leading to lengthy periods of imprisonment before their trial. In 1978, a <a href="http://www.legislation.nsw.gov.au/inforcepdf/1978-161.pdf?id=94a9d270-f0d5-4b41-daf9-b5e3ccf53976">new Bail Act</a> was introduced in NSW. At its heart was a presumption in favour of bail and a move away from “cash bail”.</p>
<h2>Politicising proper process</h2>
<p>Since the late 1980s, state governments have used the bail regime for political purposes, specifically to send a “tough on crime” message. Since 1988, more than 20 changes to bail laws created an ever-growing list of offences for which there was a presumption against bail. The list included those accused of murder, armed robbery, certain drug offences, firearms offences, terrorism, repeat property offenders and aggravated sexual assault. </p>
<p>A common thread here is the demonising of particular types of alleged offenders whose crimes evoked popular anxiety and anger. </p>
<p>These changes produced a staggering <a href="http://www.smh.com.au/nsw/unproven-but-locked-up-accused-numbers-spike-20140627-zsomt.html">rise in the prison population</a>. About a quarter of the state’s prisoners are on remand - that is, where bail is refused. The estimated cost of a remand inmate is up to <a href="http://www.lawreform.lawlink.nsw.gov.au/agdbasev7wr/lrc/documents/pdf/cref129_ba29.pdf">A$330.80 per day</a>, costing more than sentenced inmates. </p>
<p>When the Coalition came to power in NSW in 2011, then attorney-general Greg Smith SC took the laudable step of reforming bail laws. The Bail Act 2013 was the product of a rigorous and well-considered process. All stakeholders – including lawyers, civil liberties groups and victims’ rights groups – participated. It included a lengthy and considered <a href="http://www.lawreform.lawlink.nsw.gov.au/agdbasev7wr/lrc/documents/pdf/r133.pdf">report from the NSW Law Reform Commission</a>.</p>
<h2>Restoring the legal principles</h2>
<p>The new law is not a radical shift but rather a return to the traditional concept of bail, doing away with the complexity of the presumptions against bail. </p>
<p>Under the Bail Act, a bail decision-maker is required to consider whether there are any “unacceptable risks” that the accused will: fail to appear at any proceedings for the offence; commit a serious offence; endanger the safety of victims, individuals or the community; or interfere with witnesses or evidence. If no such “unacceptable risks” exist, bail must be granted.</p>
<p>If there are risks, but these can be mitigated by imposing conditions (such as daily reporting to police), bail is granted. If not, bail will be refused. Such decisions balance the presumption of innocence and an accused’s general right to liberty against the community’s interests in safety and confidence in the justice system.</p>
<p>Bail is not about whether or not an accused person is guilty of an offence. And that’s where the problem lies. In recent media coverage, bail has come to symbolise “judgment” and serve as a proxy for guilt and punishment.</p>
<p>Denying bail – putting a person in jail <em>before</em> trial – has become a way of expressing condemnation of the behaviour in which a person is <em>alleged</em> to have engaged. For example, <a href="http://www.dailytelegraph.com.au/news/nsw/these-ridiculous-new-bail-laws-have-got-to-change-says-mother-of-jodie-fesus-allegedly-killed-by-her-husband-steven-in-1997/story-fni0cx12-1226963125636">commenting on the decision</a> to grant bail to Fesus, Gay Williams, the mother of Jodie Fesus, said: </p>
<blockquote>
<p>…for almost two decades her family had kept out of the media. Now we’ve said, damn this, 16 years it’s taken us to get him into that jail and one year (later) he walks free.</p>
</blockquote>
<p>In our system, condemnation and punishment should only ever happen after someone has been found guilty of an offence. Bail <a href="http://www.smh.com.au/nsw/no-bail--go-directly-to-jail-20100416-skg7.html">should not be used to punish</a> a person who is yet to be prosecuted for a crime.</p>
<p>The new Bail Act is designed to return bail to its proper place in the criminal justice system: to ensure that an accused person turns up to face charges against him or her and to ensure the protection of the community and witnesses. Bail decisions need to be made dispassionately – and the government’s response does nothing to promote this. If we want the debate to rise above emotional populism, we need to be talking about what is actually happening in the courts each day, not just focusing on isolated examples.</p>
<p>The NSW Chief Justice <a href="http://www.smh.com.au/nsw/nsw-chief-justice-tom-bathurst-relaxed-about-filming-and-tweeting-in-court-20140618-zsaxj.html">recently endorsed</a> government moves to introduce filming of judgments in accordance with principles of “open justice” and community education. It remains rare, however, for bail decisions to be made available to the public in an accessible form. If courts at all levels were more pro-active in explaining their bail decisions the public debate might be better informed and more constructive.</p><img src="https://counter.theconversation.com/content/28651/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Julia Quilter does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Courts make hundreds of bail decisions every week but we rarely hear about them. In the past month in New South Wales, however, we have heard much about three high-profile decisions granting bail to: Steven…Julia Quilter, Senior Lecturer in Law, University of WollongongLicensed as Creative Commons – attribution, no derivatives.