3 rd International Conference on Therapeutic Jurisprudence

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1 3 rd International Conference on Therapeutic Jurisprudence 7-9 June 2006, Perth, Western Australia Session 3A PRE PLEA THERAPEUTIC INTERVENTION BY THE COURTS JANE PATRICK

2 Pre Plea Therapeutic Intervention by the Courts Jane Patrick, Magistrate, Victoria Third International Conference on Therapeutic Jurisprudence Perth 7/6/06 Introduction This paper proceeds on the basis that therapeutic intervention by courts is desirable and that intervention is likely to be more effective the earlier it occurs. It is trite to say that people who have been charged with criminal offences often have problems in their lives which contribute to their offending and which are capable of amelioration with support and assistance of a therapeutic kind. David Wexler, with Bruce Winick a co-developer of the 'wide angle lens' 1 of therapeutic jurisprudence, says that 'Therapeutic jurisprudence focuses on the law's impact on emotional life and psychological wellbeing. It is a perspective that views the law itself (legal rules, legal procedures, and the roles of legal actors) as a potential therapeutic agent.' 2 Reduction in offending and improvement to a person s life benefit the individual and the community. Reduction in offending results in reduction in costs to government and individuals. It also reduces the adverse impact of crime on individuals and the general fabric of the community. These issues are taken into account in sentencing. The use of good behaviour bonds and community based dispositions allows for court sanctioned and supervised rehabilitative interventions. There is no question that courts have the authority legally and ethically to 1 Term used by Edward Dauer in 2000 in his foreword to Dennis Stolle, David Wexler & Bruce Winick, Practicing Therapeutic Jurisprudence Law as a Helping Profession (2000) Carolina Academic Press, p. xiii 2 Ibid p. 45 2

3 implement such interventions when sentencing. Therapeutic intervention during the criminal process at the pre plea stage requires more caution. In particular the imposition of special bail conditions for therapeutic reasons raises the prospect of an exercise in therapeutic jurisprudence trumping legal principle which would be contrary to one of the core values or tenets of therapeutic jurisprudence. It could be argued that therapeutic intervention by courts is not justified at all in the pre plea stage. Against this, there is considerable evidence to suggest that intervention at this stage is very effective and that it is an opportunity for therapeutic leverage which should not be missed provided legal principles, including the rights of defendants, are not compromised. I suggest that pre plea intervention should be supported but that there may be an over reliance on the use of bail conditions. I also suggest that pre plea therapeutic interventions should be considered for suitable defendants whether they have been charged on summons or are on bail. Why are special bail conditions used to implement therapeutic interventions? There are a number of reasons, including historical ones, for using bail conditions to support therapeutic interventions including the desire to reduce the risk of re-offending while on bail and to enhance the prospects of the defendant attending court to answer the charges. The use of bail conditions to support therapeutic interventions may also be seen to serve other functions such as authorizing court intervention at an early stage in criminal proceedings, providing incentives for compliance, mandating service provision and rationing resources. Historical developments In Victoria reliance on bail conditions is partly historical. While this paper concentrates on Victorian developments and legislation I would suggest that the Victorian approach to bail and therapeutic intervention is similar to approaches in other Australian jurisdictions. 3

4 Defendants released on bail often spend months on bail with no support or assistance with housing, money, physical or mental health or substance abuse problems. The risk of re-offending is particularly clear with defendants whose offending is drug related. The chaotic lifestyles of many substance addicted people also increases their chances of failing to appear. In response to this longstanding problem Magistrate Brian Barrow (now retired) and Deputy Chief Magistrate Jelena Popovic lead the development of court auspiced bail support programs and the CREDIT program. The Court Referral and Evaluation for Drug Intervention & Treatment (CREDIT) Program has operated in Victorian Magistrates' Courts since November The program began as a result of collaboration between the Court, Department of Justice, Department of Human Services (as it then was) and Victoria Police. Additional funding from the Commonwealth through its National Illicit Drug Strategy has enabled the expansion of the program. The aim is to provide alleged offenders with an opportunity to obtain assistance for drug problems as soon as possible after arrest. CREDIT is a 12 week voluntary program within a harm minimisation framework for people on bail for non-violent criminal offences who have a current illicit drug problem. 3 Since December 2004 the CREDIT program has run in conjunctions with the Bail Support Program. Types of assistance available under these programs includes monitoring and support from court staff and assisted access to community based programs such as drug and alcohol counselling and treatment, residential detoxification programs and programs which provide assistance with housing, financial, legal and health problems. The programs have achieved significant success and the Victorian Government is providing increased funding for the CREDIT and the bail support programs. These programs will operate in future within the Court Integrated Services Program which aims to provide for better case management. The CSIP program is due to come into operation in July Magistrates' Court of Victoria Guide to the CREDIT Progamme for Magistrates November

5 In most cases defendants are already on bail when they are placed on the CREDIT program usually but not always as a result of being bailed by police. In some cases the defendant is in custody and applying for bail. Access to the programs involves an initial assessment and then the addition of or imposition of a bail condition with the defendant s consent. The usual condition is that the defendant will comply with all requirements of the bail support or CREDIT program. Additional special conditions may also be added at the request of the assessing clinician and with the consent of the defendant. Authorising early court intervention The utilisation of bail as a trigger for the intervention allows for earlier intervention than waiting for sentence or discharge. The use of bail conditions is also seen as giving authority for the intervention. Bail conditions have long been used by Australian courts 4 to impose some controls on people s lives with the aim of reducing the risk of reoffending and failure to appear. It seems logical to use the courts supervisory role in relation to defendants on bail can be used to achieve therapeutic intervention. Bail arguably allows the court some supervisory control where otherwise it would have none. The imposition of bail conditions is seen as enhancing the therapeutic process by involving judicial authority. Incentives for compliance The use of the bail process can also provide incentives for compliance with programs. In Victoria it is an offence to fail to appear in answer to bail but it is not an offence to breach a special bail condition. Bail can, however, be revoked if special conditions are breached. A further incentive is provided in the credit given for the progress defendants have made on bail if they are found guilty and sentenced. Defendants may also benefit 4 The following article contains an interesting, comparative description and analysis of the development of bail in common law jurisdictions; Metzmeier K., Preventative Detention: A Comparison of Bail Refusal Practices in the United States, England, Canada and other Common Law Nations (1996) 8 Pace International law Review 399 5

6 when it comes to sentence by having had the opportunity to demonstrate under supervision that they can comply with and benefit from community based programs Mandating service provision Bail is regarded by not only the public service agencies which fund and administer these programs but also by service providers as mandating their involvement. The imposition of a bail condition is seen as giving the authority to require the defendant to comply with their directions as to engagement with services, attendance at appointments, provision of information etc. Rationing service provision The use of bail to support therapeutic interventions also acts as a rationing device for scarce resources as the pool of defendants on bail is smaller than the pool of defendants as a whole. Arguably defendants on bail are at greater risk of offending and are a greater risk to the community than defendants charged on summons as the decision to not charge on summons should have involved some consideration of the risks of offending and failing to appear. Defendants on bail could be seen as a more appropriately targeted group than defendants charged on summons Are there problems in using bail conditions in this way? I would like to raise for discussion a number of potential problems in using bail as a mechanism for achieving therapeutic intervention. I question whether the imposition of bail conditions with a therapeutic focus is always consistent with the purposes of bail and fair to defendants on bail. Reliance on bail conditions excludes defendants charged on summons. This may be unfair. 6

7 Are therapeutic conditions consistent with the purposes of bail? It is a concern at both a legal and ethical level if therapeutic concerns are allowed to overcome legal principle or to unjustifiably affect the interpretation of legal principle. Arie Freiberg and Neil Morgan in their paper 'Between Bail and Sentence: The Conflation of Dispositional Options' 5 criticise the use of bail conditions to put in place interventions that could normally only be imposed by use of the sentencing power after a finding of guilt. They argue that such use is contrary to the purposes of bail which is to ensure the proper processing of past events, not a means of imposing positive obligations upon a person in order to provide a new basis for future decisions' 6. They also criticise the use of semi-coercive powers to put in place requirements that would not otherwise be part of the bail process. The imposition of bail conditions is governed by the applicable law in each state or territory. The legislation varies in terms of the types of bail conditions that may be imposed and the restrictions on imposing bail conditions. They may specifically allow for conditions that go beyond the traditional purposes of bail. The Victorian Bail Act 1977 incorporates the common law purposes of bail 7 which are concerned with the administration of justice. Section 5 provides for conditions for release on bail. Subsection (1) covers undertakings with or without sureties or deposits. Subsection (2) allows for the imposition of 'special conditions' where a court considers they are necessary to secure the appearance and surrender into custody of the defendant; that the defendant does not commit offences while on bail; the protection of the safety or welfare of the public and that the defendant does not interfere with witnesses or obstruct the course of justice. Subsection (4) enables a court to make a special condition that the defendant undergo a medical examination. 5 Current Issues in Criminal Law Ibid. page 4 7 Victorian Law Reform Commission, Failure to Appear in Court in Response to Bai: Report (2002) para

8 There is no specific provision for the imposition of bail conditions for therapeutic purposes. This is in contrast to the West Australian legislation which specifically allows the imposition of conditions with a therapeutic purpose provided such conditions are not more onerous than required in the public interest taking into account the nature of the offence and the circumstances of the defendant. The Victorian Law Reform Commission is currently reviewing the Victorian Bail Act. The review includes consideration of amending the Bail Act to specifically allow special conditions directed at rehabilitation prior to sentence. The W.A. provisions are cited as an example of the type of change that might be made. 8 Other examples are contained in the South Australian Bail Act 1985 which provides that a court may, with the defendant s agreement, make it a condition of bail that the defendant participate in an intervention program. 9 Intervention programs are defined to mean programs designed to address behavioural problems (including problem gambling), substance abuse or mental impairment 10 The New South Wales Bail Act 1978 also allows additional bail conditions where the court is of the opinion that the defendant would benefit from an intervention program, treatment or rehabilitation. 11 As the Victorian legislation stands I suggest that there is no difficulty in imposing special bail conditions provided they are necessary. The question of necessity is a matter for each person imposing the bail conditions to decide upon in the particular circumstances but the concept of necessity arguably needs to be considered in the context of the purposes of bail. If bail conditions are imposed for therapeutic purposes which go beyond even a broad interpretation of what is necessary to reduce offending or ensure attendance at court then the decision to impose those conditions may be open to legal and ethical challenge. 8 Victorian Law Reform Commission, Review of the Bail Act: Consultation Paper (2005) p Section 21B 10 Section 3 11 Section 36A 8

9 The concept that bail conditions should not be too onerous is common to many jurisdictions. The Victorian Act says that conditions shall not be more onerous than required in the public interest taking into account the nature of the offence and the defendant s circumstances. 12 I note that the Northern Territory legislation also says that bail conditions should not be more onerous than the nature of the offence and the defendant s circumstances require. 13 The Queensland legislation includes a similar restriction although it also allows conditions which are necessary in the public interest. 14 The New South Wales Act says that conditions should not be more onerous than required by the nature of the offence, the protection and welfare of other persons involved and the defendant s circumstances. The Australian Capital Territory legislation has a different approach and allows conditions that are more onerous than would otherwise be necessary provided such conditions are imposed at the defendant s request. 15 I remain concerned that, even where there are broader legislative provisions than in Victoria, there may be good reasons why caution should be exercised in using bail conditions to achieve therapeutic interventions even though the defendant consents to the conditions.. Potential unfairness to defendants The Western Australian legislation incorporates the idea that bail should not be unjustifiably onerous and that it should be proportionate to the alleged offending. I suggest that other legislation incorporates the idea of proportionality when it includes the nature of the offence among the matters to be considered when looking at whether the conditions are too onerous. It seems at least potentially unfair to require a defendant, even with their consent, to engage in programs requiring hours of attendance at specified times which may go well beyond any punishment they would receive if they were found 12 Section 5 (1) 13 Bail Act 1982 (N.T.) Section Bail Act 1980 (Qld) Section 11(1) 15 Bail Act 1992 Section 25(b) 9

10 guilty of the offence. This seems even less fair if the conditions are ones that go beyond what would normally be considered necessary for bail purposes. There are serious consequences for defendants if they cannot comply with their bail conditions. Courts and police are given significant power backed by criminal sanctions to intervene in the lives of citizens. This power should be exercised with caution and in circumstances where the public interest justifies the exercise of such power. A finding of guilt justifies the exercise of restrictive powers by the courts to extent that being on bail does not. Potential unfairness is of particular concern with very vulnerable defendants including young people with substance abuse problems and people with a mental illness. Nor does the promise of credit in sentencing for progress achieved on bail justify the imposition of unnecessary conditions. This potential benefit obviously only applies to those who are found to be guilty. For those who do plead guilty or are found to be guilty the hours they have put in and the restrictions that they have complied with may not be accurately reflected in any reduction in sentence they receive. For some defendants there may also be a degree of unfairness in continuing their bail beyond the time when their matter would normally have been completed in order to allow them to complete a therapeutic program. I accept that in imposing conditions which have a therapeutic aim judicial officers have in mind the best interests of the defendant as well as the interests of justice and the community. Even if amendments to the Victorian legislation were made along the lines of the Western Australian legislation I would still argue that placing defendants at risk of revocation of bail for breaching conditions imposed for therapeutic reasons requires justification in the public interest beyond the desire to do good for the individual. 10

11 What about people who aren t on bail? Defendants charged on summons are excluded even though in many cases the public interest would justify pre plea therapeutic intervention. Defendants charged on summons occasionally ask to be put on bail so they can access the services. To place people on bail who have been charged on summons risks allowing therapeutic reasons to trump legal principle, as would police placing people on bail for these reasons when they would not otherwise do so, but refusal to do so seems unfair to many defendants whose circumstances and needs are no different to many of those on such programs. The police decision to charge and bail defendants or charge on summons does not reflect accurately or consistently the severity of the alleged offending, risk of offending, risk of failure to appear or the circumstances of the individual defendant. Often people charged with very serious offending including fraud and sexual offending are charged on summons while people charged with relatively minor street offences are arrested charged and bailed. The police decision often seems to depend on the circumstances in which the offending is detected. For example a person shoplifting to support a drug habit who is caught in the act will generally be charged and bailed. If the same offence is detected after the event by closed circuit television evidence or other identification the person is often charged on summons. Figures provided to the Victorian Law Reform Commission in its consultations as part of its review of the Bail Act indicate that approximately 50% of defendants are brought to court pursuant to arrest rather than by way of summons. 16 The Commission s Consultation Paper describes the use by police of their arrest and bail powers. The Commission was told that police may decide to arrest an accused for reasons of expediency and convenience. This may occur despite the legislative preference for summons 17. Once the decision is made to arrest a person, unless the charge is very 16 Ibid. p Ibid. p 21 11

12 serious or is in the category where bail can only be given in exceptional circumstances, the police usually charge and bail the person rather than release them and later charge on summons. The point I am making is not to criticize the police decision they have to decide quickly in the given situation whether there is a risk that the person will not appear at court - but to demonstrate that the bail decision is not a good determinate of the need for services to reduce risk of re-offending or failure to appear at court. Are we being honest? Therapeutic intervention is likely to work better for defendants if the process and participants are honest. 18 Acting with integrity and appropriate honesty also makes the task easier and more rewarding for judicial officers. There is a risk that we are being less than honest in implying that defendants must comply with bail conditions. The reality is that, in most cases, if they do not comply with the CREDIT /bail support program those conditions are removed from their bail orders without any other sanction. The CREDIT program operates for three months except in unusual cases. Bail is then continued with the program conditions removed. The assistance provided may have been entirely effective in reducing the risk but I would suggest that in a significant number of cases the risk has not substantially reduced. If we are then prepared to remove the conditions does this not suggest that they were desirable rather than necessary in the first place? Is there any alternative? 18 Bruce Winick & David Wexler, Judging in a Therapeutic Key (2003) Carolina Academic Press, p

13 If there is force in arguments against the routine use of bail conditions to achieve therapeutic outcomes then is there any alternative? It is desirable to intervene early with people whose behaviour brings them into contact with the criminal justice system and the involvement of judicial officers is important and useful. If the public interest in these programs is broader than the interest in bail compliance and includes the reduction of further and escalating offending then why shouldn t these programs be available to all defendants whether charged on summons or not? One answer would be that there will never be sufficient funding to provide services to all defendants who might benefit from pre plea intervention and at least intervention through bail programs provides desperately assistance to some. It may also serve a double purpose of reducing the risk of failing to appear on bail as well as the risk of offending on bail. I suggest that using bail as the criterion for intervention is a very blunt tool for determining how public resources should best be expended in order to maximise the outcome that best serves the public interest in the reduction of offending and fairness in the allocation of resources. If resources are scarce decisions as to who can access the services should be made on the basis of the particular circumstances and research based information on reduction in offending strategies. I acknowledge the difficulties that have been found in existing attempts to assess risk and motivation in a way that will provide any useful prediction of treatment choice or treatment outcome 19 but in my view experienced judicial officers with multidisciplinary support are best placed to make these decisions. The CREDIT model has proved very successful and could be built on. The exercise of therapeutic jurisprudence often involves cooperation between judicial officers, court staff, public servants and service providers. The need for such cooperation occurs in the context of a certain amount of tension between the judicial and executive arms of government. I would hope that the level of cooperation achieved in that program could be continued 13

14 even if bail were not the only trigger for pre plea intervention. The role of judicial officers in a supervisory capacity could still continue without bail through the mention system. Another response to the proposal that all defendants should be able to access such programs without the imposition of bail conditions is that there would be no authority for the intervention. I would argue that bail conditions are not required to mandate the provision of services or to enable the court to have a supervisory role. The current programs only operate with the defendant s consent. Defendants consent to the terms of the program and the provision of reports and information. The same consent would be sufficient to allow the programs to operate without the support of bail conditions. The real incentives and disincentives would remain - wishing to look better in the eyes of the court would remain as well as the wish to deal with issues which are bringing the person into confrontation with the law. In my experience defendants comply with the requirements of the CREDIT and bail support programs because they want to access services and/or because they think they will be in a better position when it comes to sentence not because they think they will have their bail revoked if they do not comply. Failure to comply with the programs would result, as now, in loss of an opportunity to benefit rather than any additional sanction or punishment. There may also be therapeutic advantages in offering intervention as a choice rather than as a condition of bail. Choice may have a greater psychological motivating effect than the element of coercion contained in the imposition of bail conditions 20. I remain convinced that pre plea therapeutic intervention with judicial involvement is a good thing. I would like to see it expanded to be available to all defendants at the time of their first court date whether they are charged on summons or they are on bail. Both 19 Kutin, J. & Koutroulis, G., Strike a Light; this Match Didn t Work! Evaluation of the Victorian Based Community based Corrections Treatment and Testing Policy: Does matching to Treatment Improve Outcomes? (2003) 10 Psychiatry, Psychology and Law

15 groups of defendants could access desperately needed services without the need to impose unnecessarily broad bail conditions. 20 Winick, B. & Wexler, D., Judging in a Therapeutic Key Carolina Press 2003 p 182-3; see also King M. & Wager J., Therapeutic jurisprudence and problem-solving judicial case management (2005) 15 JJA 28 15

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