No bail, more jail?: Breaking the nexus between community protection and escalating pre-trial detention

Victoria is experiencing an ‘incarceration crisis’,1 caused by an unprecedented growth in prisoner numbers. The key driver of this growth is the increasing number of persons who are denied bail and remanded into custody.2 As of 31 May 2019, 38 per cent of adult prisoners in Victoria were being held on remand.3 The increase in the remand population is gendered, with higher rates for women—nearly half the women in Victorian prisons are now being held on remand.4 It is also contributing to the incarceration crisis with indigenous offenders, as Aboriginal and Torres Strait Islander peoples are disproportionately represented among those remanded.
Moreover, there are signs that pre-trial detention in Victoria is increasing. In 2017–18, Victoria had the largest increase in prisoners held on remand of any Australian State or Territory. Recent reforms to bail law are likely to further contribute to this trend by further restricting eligibility for bail.
What lies behind the increased number of persons being held on remand, and the changes to bail law? A comparison of bail laws and parliamentary debates in Victoria in 1977 (when the Bail Act was introduced) and 2017–18 (the most recent substantive reforms) reveals escalating concern about community protection; that is, the need to protect the community by remanding into custody those persons deemed to present a risk of committing offences if released on bail.
However, the shift towards greater community protection has come at a cost. There are significant human, fiscal and legal consequences associated with pre-trial detention. The current framework for risk assessment is resulting in over-incarceration. The present legal framework for assessing risk, involving a two-step process for serious offences, is unduly complex. Troublingly, there is also evidence that the long-term consequences of remanding people into custody may actually decrease community safety, as even relatively short periods of incarceration (such as that experienced by many of those held on remand) are associated with higher rates of subsequent criminal offending.
While the desire to protect the community from those who are likely to commit serious offences if released on bail is grounded in legitimate political and community interests, it is necessary to simplify current law and to utilise modern research to target only those individuals who are most likely to commit serious violent offences if released on bail. Adopting a single ‘unacceptable risk’ test would simplify bail decision-making. Assessment instruments, such as those reviewed by the non-profit MacArthur Foundation in the United States, could assist bail decision-makers to remand into custody only those who present a serious risk of violent offending if released on bail.5 Adopting these recommendations could satisfy the goal of community protection, while minimising pre-trial detention.
1 Several commentators have identified an incarceration crisis in Australia; their analyses are applicable to Victoria. See Baz Dreisinger, quoted by Hayley Gleeson (2019) ‘Australia Must ‘Radically Re-Think’ Its Prisons to Avoid Becoming Like America, U.S Activist Says’, ABC News, 30 April; Cape York Institute (2019) The Indigenous Incarceration Crisis: The Queensland Productivity Response is Inadequate, CYI Further Submission to QPC Imprisonment and Recidivism Inquiry, April, Cairns, Cape York Institute, p.14.
2 Remanded prisoners are also known as unsentenced prisoners. They comprise those who await conviction and have been remanded into custody (remanded), convicted but awaiting sentencing (remanded for sentencing) and remanded pending appeal. A small number of persons awaiting deportation are also included in this category.
3 Corrections Victoria (2019a) Monthly Time Series Prisoner and Offender Data, Melbourne, Department of Justice and Community Safety, Table 1 – Prisoner numbers.
4 ibid.; see also Corrections Victoria (2019b) Women in the Victorian Pris