Pre-Trial Detention Under the Young Offenders Act: A Study of Urban Courts
7. Discussion (cont'd)
- 7.4 Predicting Risk
- 7.5 Failure to Attend Court and Non-Compliance with Bail Conditions (FTA/FTC)
- 7.6 The Effects of Pre-trial Detention on the Nature of the Plea and the Sentence
- 7.7 Further Research
7. Discussion (cont'd)
If one is to acknowledge the maxim of "innocent until proven guilty", restrictions on pre-trial liberty must be justified on the basis of risk: risk that the accused will fail to appear for court, risk that they will endanger the community and, on a broader ground, the risk that a wrong decision will undermine confidence in the proper administration of justice. Risk assessment is a controversial issue: the accuracy of predictions has been called into question on numerous occasions and, as such, the area is fertile ground for debate. 
The information at hand to the decision-maker may be limited or of questionable reliability. U.K. research (Morgan and Henderson, 1998, Henderson, 2002) reported that bail decision-makers frequently complained about lack of reliable information. This does not seem to be a major problem in Canadian youth courts. For example, according to interviews of police and Crowns, details of the prior convictions of the accused are always or almost always available at arrest and at bail hearings. The police and Crowns use a variety of sources including the information systems of the courts, the local police and youth corrections. Details of the current offence are always included in reports. Information on living arrangements and school or employment status is sometimes collected in arrest reports. (Defence counsel would probably argue that the accuracy of the latter information is questionable.)
Thus, lack of information on the accused’s current offence, prior convictions and other justice system involvement does not appear to be a problem in Canadian youth courts. However, the low use of the "responsible person" bail section of the YOA - along with the comments made by Crowns and defence counsel - suggests that there is inadequate information available at bail hearings on this alternative to detention. Unless the young person has his or her own defence counsel, or there are other program personnel to inquire about the availability of a responsible person, this option tended to be overlooked.
In some United States jurisdictions, standardized risk assessment tools are used to predict behaviour while on bail (Annie E. Casey Foundation, no date). The trend towards the use of standard instruments in predicting risk of re-offending has been questioned (e.g., Hannah-Moffat, 1999). The objections include the tendency towards over-prediction and imprecision in general, and that too great reliance is placed on static predictors such as prior record. However, standardized tools cannot predict the extent to which police and probation staff are proactive in laying non-compliance charges.
Bail conditions are imposed in order to manage pre-trial risk - the risk of non-appearance at court and of committing further offences. At the same time, they also provide new opportunities for offending. Young persons received more numerous bail conditions than did adults in the same community (Toronto), in roughly the same period. This finding suggest that the courts view youth as requiring more supervision, surveillance and control while on bail than do adults.
Many young persons do not attend all their scheduled court hearings as required and/or do not comply with their conditions of release. In the total sample, about one out of ten young persons failed to attend court at least once and in some courts, the proportion was much higher (up to one-quarter of cases). Failure to comply with bail conditions was more common with about 40 percent of the group released on bail being charged with this offence.
It was clear from the analysis that there was often little or no relation between the types of conditions imposed and the offence. The most frequently violated conditions were curfew, followed by one of the various "reside" conditions. Being charged with these offences often results in the youth’s case being treated as reverse onus, with the consequence that being detained until sentencing becomes more likely. Furthermore, the accumulation of these administration of justice offences influences decision-makers in later brushes with the law. These relatively minor violations can have serious and long term consequences. Youth justice personnel might wish to reconsider the utility of numerous (and often onerous) conditions, especially when there is no evidence that their imposition reduces the risk of re-offending and non-attendance at court.
In this research, almost two-thirds of detained young persons were found guilty on one or more of the charges on which they were held at arrest. Most of the remaining one-third were convicted of other charges later in their court process.
Guilty pleas and hence adjudications of guilt were affected by pre-trial detention. Detained youth were much less likely than others to have all their charges dropped. Similar to the findings of Kellough and Wortley (2002) in their analysis of bail decisions in two adult courts in Toronto, our regression analysis found that the odds of pleading guilty were much higher for those who were detained than those who were released. Interviews with adult detainees provided reasons for the effect of detention on guilty pleas, including the desire to avoid "dead time" in jail, the belief that fighting the charges at trial was futile, and the belief that they would not receive custody when sentenced (Kellough 2003).
The multivariate analysis of the effects of being detained before trial on sentencing found that, controlling for other factors, detention independently affected the likelihood of a custody sentence.
The sentencing patterns showed variations by court. Sixty percent of detained youth received custody. Only about one-half of detainees in Toronto and Edmonton were sentenced to open or secure custody, compared to about 80 percent in Halifax and the two Vancouver-area courts.
In summary, being detained at the initial bail hearing disadvantages the young person both in terms of the likelihood of being convicted (as a result of a guilty plea) and of receiving custody.
Using this dataset, the following bail-related research should be considered:
- the characteristics of youth who pleaded out soon after being detained;
- the use of "time served" as a sentence, especially when it is the sole sentence;
- the factors related to multiple detention stays during the court process; and,
- the relationship between bail and probation conditions in each court, and the breaches arising from both bail and probation.
 Brignell, 2002: 6.
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