Intensive Supervision and Electronic

Intensive Supervision and Electronic Surveillance as Alternatives to Remand in Custody Ross Lay Probation and Parole Department of Corrective Services New South Wales etween July 1984 and June 1988, the number of prisoners held not under sentence in New South Wales (NSW) rose by 72.2 per cent from 580 to 999; the number of sentenced prisoners increased by 33.6 per cent during the same period (NSW Department of Corrective Services 1988, pp. 5 and 6). About one in five prisoners in NSW are unsentenced with that population rising at more than twice the rate for sentenced prisoners. This inflation in the unsentenced prisoner population has not only stretched prisoner accommodation, but it has thrown into relief a range of issues in relation to bail in NSW. Locked away in this remand population are remandees who may be potential bailees given an expansion of the strategies for managing defendants and accused persons currently persons currently denied bail. The NSW Minister for Corrective Services, Mr Michael Yabsley, has acknowledged the problems surrounding the high remand population. The lead time to an accommodation solution is more than two years, but the Minister has pointed the way to a response that could be more rapidly pressed into operation¾'I suspect that much of this overcrowding could be alleviated if magistrates were ready to grant bail in appropriate circumstances' (NSW Corrective Services Bulletin, 22 August 1988). The search for 'appropriate circumstances' is now both urgent and justified. This paper is an examination of the potential for an intensive supervision bail program to augment the existing regimes and strategies for the management of persons allowed conditional bail. Intensive supervision (often called home detention) is a supervisory regime adopted in recent years to manage some higher risk offenders in the community. Gaol and Bail There is an enormous difference in terms of identity and management between those who have been refused bail and those who are allowed it. A study of the remand system in England and Wales under the appropriate title of Lacking Conviction (Winfield 1984), found that 21 per cent of defendants remanded in custody by Crown courts were either acquitted or given non-custodial sentences. The figure was seen to be unacceptably high B 130 BAIL OR REMAND? and a 'tiered approach' to bail was proposed to break down the 'all-or-nothing approach which characterises the bail/custody question (and the need for the) imaginative use of reporting and residence conditions to enable more defendants to be released on bail' (Winfield 1984, pp. 81-2). Before suggesting such a response, it is important to clarify a few matters that apply to defendants and bail: n As persons on bail or refused bail are unsentenced, any regime of confinement or supervision cannot be applied as a punishment (despite the fact that a custodial sentence may be back-dated to accommodate the prior period in custody). n Intensive supervision is a regime of social control (as prison walls exercise social control) designed to enhance the bailee's potential to comply with the expectations of bail¾to return the defendant to court; to protect the community from re-offending; and to protect the defendant from injury to him or herself. n The transference of some levels of offender management from prison to the community has been retarded somewhat by the preservation of the dichotomy between the custodial and community camps in corrections. Community-based corrections, in their attempt to preserve the rehabilitative face of their operations, have been slow to admit the social control dimension of corrections into their operations. This traditional polarity may have in fact contributed to stubbornly high imprisonment rates¾an unintended consequence that may only be reluctantly admitted. The non-alignment of probation and parole officer roles with the expectations of the pilot Bail Assessment Service and Supervision Programme in NSW is evidence of this problem (Law 1984, p. 27). n There has been a substantial investment of energy and effort into the assessment of bail consideration, but an unequal contribution in regard to the supervision of the bailee. While it is acknowledged that the NSW Probation and Parole Service is frequently identified as the provider of 'supervision and guidance' in relation to many bail undertakings, in most cases the regime that is applied in response to this is indistinguishable from the normal processes of probationary supervision. One of the assessment tests for bail was built into 'Form 4'¾the Background and Community Ties Questionnaire used by police in bail assessment. This form, although given a substantial revision in recent years, seems to have fallen into disuse. In 1984, during the period of the NSW Bureau of Crime Statistics and Research study on bail (1984), Form 4 was used in only 12.3 per cent of police bail assessments; it now seems rarely used at all. Yet, unless bail assessment is sound, the practice and potential of bail supervision could be astray. n No paper on current correctional issues can ignore the impact of HIV antibody positive and Hepatitis B offenders. The compulsory screening of remandees for AIDS poses difficult ethical and management problems. The usually unstructured remand environments, with limited work, educational and recreational opportunities, suggest that there are enormous and obvious benefits in shrinking the size of the remand population for this reason alone. AVOIDING REMAND IN CUSTODY 131 Bail and Intensive Supervision The New South Wales Bail Act 1978 sets provisions for the imposition of specific bail conditions. It reads: 37. (1) Bail shall be granted unconditionally unless the authorised officer or court is of the opinion that one or more conditions should be imposed for the purpose of promoting effective law enforcement and the protection and welfare of the community. (2) Conditions shall not be imposed that are any more onerous for the accused person than the nature of the offence and the circumstances of the accused person appear to the authorised officer or court to require. It seems that this section of the Bail Act has created much more space for flexibility in setting bail than has been realised to date. It enables the bail adjudicator to tailor bail conditions to the particular needs of both the defendant and the community. Such things as reporting to the police, not entering licensed premises, non-association with specified persons, and Probation and Parole Service supervision usually characterise the application of this section. However, at the time of the NSW Bureau of Crime Statistics and Research 1984 study, only one of the 198 defendants (0.5 per cent) had Section 37 conditions applied to them. The researcher indicated that the utilisation of this provision ' . . . is the least onerous of the allowable conditions' (p. 15). Such an interpretation of Section 37 appears to be much narrower than the Act both permits and intends. The target group for a more adventurous interpretation of Section 37 is those defendants who are denied bail or unable to raise bail because of specific social deficits. The Bureau of Crime Statistics and Research demonstrated that the most common reason for bail being refused was a 'lack of community ties'. Half those refused bail in the research sample had this reason specified (1984, p. 24). The defendant's prior offence history also mitigated against bail in about half of the sampled cases. A regime of intensive supervision would not divert all 'lack of community ties' defendants from a bail-refused situation (many so identified defendants have bail refused for more than one reason, of which only one may be a lack of community ties). However, bail may be allowed for some defendants if their accommodation and/or employment situation can be confirmed and monitored, if any non-association conditions can be supervised, if any curfew requirements can be surveyed, and if any other restrictions on movement and association are tested for compliance. While there may be an initial welfare component in securing bail (for instance obtaining accommodation), the overriding intention of intensive supervision is to enhance the potential for the defendant to return to court and restrict the radius of social behaviour so that reoffending potential is reduced, without incarceration. Some of the elements in such a supervisory regime could include: n A high incidence of planned and random checks on accommodation and/or employment. Daily contact, either by way of visits, reporting, or other checking would probably be the usual routine. n Random breath-testing and urinalysis where alcohol abuse and/or illegal drug use were of significance in the alleged offending behaviour. A 'dirty' result may activate breach proceedings. n Checking curfew compliance. A bail condition confining the defendant to a place of accommodation between specified hours may be applied. 132 BAIL OR REMAND? n The use of telephones or electronic surveillance devices may be utilised to enhance the monitoring of curfews or other restrictions on social movement. n Elevating the significance of the 'acceptable person' nominated in support of the bail application, as a reference point for welfare type matters during the period on bail. The specific intention of such a program is to divert appropriate defendants from a bail refused situation to a supervisory regime where they are partially rather than totally incapacitated; where there is no radical overtaking of their liberty; where there can be the maintenance of such things as accommodation, family ties, and employment. The performance indicators for such a program of intensive supervision would be a contraction in the total remand prisoner population (the need for bail hostels could be superseded), cost savings in terms of prisoner management, reduced reoffending on bail, and a low 'fail to appear' rate. Intensive supervision programs, by their very nature, tend to expose program violations that would be unlikely to be detected in the normal processes of bail supervision. Accordingly, a high breach of bail conditions rate (even 20 to 30 per cent) could be anticipated. If net-widening in such a program is to be avoided, two factors assume significance. Firstly, the identification and assessment of appropriate defendants for such a program is critical. The use of an objective Form 4 type assessment (risk-need assessment instruments) may assume renewed significance. Secondly, maybe only those defendants who have been refused bail at some stage should be entitled to assessment for intensive supervision bail. Operational Considerations A regime of intensive supervision as a specific bail condition could harness the resources already deployed in an intensive supervision/home detention type program. The smorgasbord of design options could even see the surveillance 'leg work' undertaken by private sector security operatives or the recruitment of sessional surveillance personnel who are only pressed into service when defendants materialise for supervision. The role of the police could be expanded in respect of bail supervision or it could be contracted if responsibilities were devolved to other authorities. Conclusion Prison is not the 'last resort' if the application of all alternatives has not been tested. The expansion and success of home detention and intensive supervision programs overseas has moved offender management from custody into the community for many offenders. There are sound reasons for exploring its potential in the territory of bail. Intensive supervision of defendants who may normally be refused bail has the potential to reduce the remand population, and produce a range of benefits in terms of costeffectiveness, community protection, and defendant management. AVOIDING REMAND IN CUSTODY 133 References Law, J. 1984, Bail Assessment Service and Supervision (Pilot) Programme, NSW Probation and Parole Service. New South Wales Bureau of Crime Statistics and Research 1984, Bail Reform in NSW, Department of the Attorney-General, Sydney. ----------- 1986, Bail and Drug Changes, Department of the Attorney-General, Sydney. New South Wales Department of Corrective Services 1988 (Oct), Seasonal Trends in the Size of the NSW Prison Population, Sydney. Winfield, M. 1984, Lacking Conviction¾The Remand System in England and Wales, Prison Reform Trust, London.

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