Conditional justice: therapeutic bail in Victoria

Two fundamental principles of the Australian criminal justice system are those of innocence before proven guilty and imprisonment as a last resort. Remand imprisonment challenges these two ideals; as such, it is deemed a measure of last resort. In recent decades the criminal justice system has seen a shift in the granting of bail, from ensuring court attendance to a risk management tool. In conjunction with this shift, remand rates in Australia have been trending upwards. In response to growing remand rates, therapeutic bail initiatives, implemented through the courts, have flourished in many jurisdictions. These initiatives claim to assist in reducing remand rates by targeting risk factors that may result in remand through therapeutic measures, such as drug and alcohol treatment, before a person’s case is heard in court. To date, little empirical, qualitative research has been conducted into the implementation and effect of these programmes, particularly on vulnerable people. This thesis aims to respond to this gap in scholarly research. In this thesis I examine the use and effect of therapeutic bail conditions in the state of Victoria, to determine the ability of these processes to uphold the principle of remand as a last resort. This research draws on 33 interviews with key players in the bail and remand process, and observation of 117 bail and custody hearings in the Magistrates’ Court of Victoria. I argue that therapeutic bail lends legitimacy to the risk management processes that now dominate bail. I show how therapeutic bail is used as a management tool for people experiencing multiple markers of vulnerability. Punitive responses that flow from a failure to comply with therapeutic bail conditions illustrate the extension of penal power beyond the traditional realm of the prison institution and into pre-trial processes. Limited access to services further marginalises vulnerable people, increasing the possibility of experiencing therapeutic bail punitively. As a result, therapeutic bail support programmes may have punitive and net-widening effects, particularly on those most vulnerable in our community. This thesis provides theoretically grounded empirical research on therapeutic bail conditions in Victoria, an area that has so far escaped academic attention.