The paradox of pre-conviction punishment: the experience of living with bail conditions

ABSTRACT

Conditional release on bail is often perceived as being more humane than the harsh reality of incarceration and, as such, the deprivations it imposes remain largely unexplored. Comparing life on bail to community sanctions allows us to extend current research on the effects of living with conditions before a conviction. By asking how are the punitive effects of bail experienced, we assess the ways in which 47 individuals accused of a crime navigate release with conditions. Interviews show that experiences vary along a continuum from being ‘it’s easy man’ all the way to ‘it’s like incarceration.’ Our findings help conceptualize the experiences of ‘punitiveness’ in the context of bail and indicate both the hidden costs and benefits of conditional release.

KEYWORDS:

• Bail
• punishment
• community supervision
• pains of imprisonment

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. When determining whether, and with what conditions, accused can safely be released back into the community pending their trial, the legislative framework of bail directs Justices of the Peace (JPs) to use the ladder principle to ensure the fewest and least onerous conditions necessary are imposed (Criminal Code s.515). The lowest rung of the ladder indicates that accused should be released without conditions and on their own recognizance. If the Crown feels this is inappropriate, they can argue for a more restrictive release which might include release with conditions that range from reporting to a police officer to house arrest or medical treatment/programming (Trotter 2010). According to the Criminal Code, a move up the ladder to more restrictive releases must be related to the mandate of bail and should be accompanied by a clear justification from the Crown about why a lesser form of release is inappropriate (Trotter 2010). Like with parole and probation, individuals who fail to obey their conditions of release risk accumulating additional charges and being placed in custody.

2. The bail experience must have occurred within the previous two years to ensure a recent recall period for all participants.

3. To simplify the bivariate analysis, we recoded ‘very easy’ as ‘easy’ and ‘very hard’ as ‘hard,’ creating a new three item scale.

4. Pseudonyms are used to protect the confidentiality of our study participants.

Additional information

Notes on contributors

Carolyn Yule

Carolyn Yule is an Associate Professor in the Department of Sociology and Anthropology at the University of Guelph. Her research uses a combination of quantitative and qualitative methods to examine how life course events and processes shape stability and change in criminal behaviour.

Rachel Schumann

Rachel Schumann holds a PhD in Sociology from the University of Toronto. Her research investigates how criminal court decisions shape the lives of criminal justice involved individuals and their families.

Laura MacDiarmid

Laura MacDiarmid is an Assistant Professor at the University of Guelph Humber. Her research explores the experiences of criminal justice involved individuals with a particular focus on community justice alternatives.

Bianka Dunleavy

Bianka Dunleavy,B.A.H., is a Research Assistant at the University of Guelph in the department of Psychology. Her research interests include understanding legal decision-making and risk factors for justice involved individuals, including individuals with neurodevelopmental disabilities and mental health needs.