Criminology L6: Remand

Things to consider:

 Non-appearance
 Tampering with evidence
 Likelihood of re-offending

Either:

- Remand at large: released into community

- Remand with bail: released into community with special considerations
- Remand at custody: not released into community, offender stays in jail

Balancing Act:

- Innocent until proven guilty

Christie Marceau:

https://www.stuff.co.nz/auckland/102010344/bail-laws-in-spotlight-after-coroner-releases-
findings-into-the-death-of-christie-marceau

Bail Amendment Act 2013:

- Incarceration rates have rapidly increased

- Bail amendment act is being applied to less serious and non-violent offences
- Many people are remanded in prison because of their housing situation

Bail Industry USA:

- Works on money bail system

- Remanded in custody until prisoner can afford to pay the bail amount set by
judge
- 8 in 10 pay a full year wage in order to pay their bail
- $3.1M in lobbying
- $14B in Bonds

Algorithm to solve (New Jersey):

- Judges use this to determine to remand in custody or not

- Unfair on people with no money
- Algorithm seeks to absolve bias in the bail system

Penology: A study of punishment

- Old penology concerned with responsibility, fault, diagnosis or intervention

and treatment of the individual offender
 - Humans as the unit of analysis

The New Penology (Feely and Simon):

- 1980’s, as a response to increasing imprisonment rates

- Seeks to manage crime
- Focuses on actuarial data (statistics used to calculate risk)
- Introduction of risk assessment (low, medium and high)

Justice system identifies a person’s risk to the community and the risk of them re-
offending

Features of The New Penology:

1. Introduced a new discourse: New way to understand punishment and it

replaced with statistics and probabilistic calculations applied to individuals
2. Penology is not about punishing nor about rehabilitating individuals. It is about
identifying and managing unruly groups
3. Increase in parole in probation. Shift to using these as sanctions, and
mechanism for controlling and managing offenders in the community

Custodial Continuum:

New penology is not concerned with how to control or manage people but seeks to
identify unruly groups and identifying the underclass, disorganised and disorderly

Culture Control (David Garland):

New penology extends past the criminal justice system

What is dangerousness?

- Influences and changes the ways we respond and think to who is dangerous
in our society
- Identifies the group of offenders whose propensity to repeatedly commit
crimes of a serious nature puts the well-being of the rest of the community at
risk

Begs the question:

- How does someone prove they are no longer dangerous?
- Identifies those who are too dangerous for rehabilitation and thus, prison is a
dumping ground

Evidence based sentencing:

- Likelihood of committing the offense again

- How severe the consequences would be

Measures of risk guide the imposition of sentences, on the basis of multiple factors.
Clinical Judgement:

Informed but subjective judgements are made by experts such as

psychologists/psychiatrist. Risk decisions are made by a select few of professional
individuals to avoid human error. Other problems include efficiency and cost. In
reality, no one can predict future dangerousness with absolute certainty.

Why Actuarial data?

- Removes subjective judgement and bias

- Aids law enforcement resources in concentrating on certain crimes,
intervention and surveillance
- Helps law enforcement be aware of and take quick preventative measures for
someone with high risk
- Creates consistency, lower cost and improve efficiency

Risk Examples:

Compas: Correctional offender management profiling for alternative sanctions

- Developed in 1998 in USA
- Used to assess more than 1 million defendants
- Focuses on 137 survey questions that asks for information ranging from
criminal history to their social lives and thoughts

Roc x Rol (Risk of re-conviction x risk of re-imprisonment):

- Developed in NZ in 1998

Static vs Dynamic variables:

Static Variables: immovable or fixed

- Age

Dynamic Variable: Fluctuating

- Characteristics on personal and social level

What is the most predictive?

- Criminal Companions: intuitively, it makes sense

- Anti-Social personality disorder: Characteristics of lying, callousness and
disregard for right and wrong
- Substance abuse (Consequences involve, impaired cognition and judgement

What is the most problematic?

Is it fair to punish someone for a cognitive impairment they are born with?
Differential treatment on the basis of static variables (age and race). Seemingly,
deterministic? People can transcend class boundaries – how is it measured? (Socio-
economic factors)
Logistical Problems:

- Most RA instruments use official statistics. These statistics are often

incomplete
- This leads to inaccurate data which lowers the quality of the analysis and its
accuracy
- Some variables are easier to observe than to measure. Expense, amount of
time it takes to accurately measure and assess reliability and validity
(psychological evaluations)
- Profiling high-risk individuals potentially ignore and make it easier for those
who are profiled as low-risk to go and commit crimes

Knowing and measuring variables are two separate entities. It is far better to have
accurate results than biased and inaccurate assumptions.

Philosophical Problems:

- Ascribed vs Achieved status of variables: Race, age and family members) –

these we do not choose. If we use these variables, are we measuring risk by
things outside of their control compared to their act?
- Overly deterministic: Legality of being unemployed, single or poor – why
should we be penalized for this?
- Situational context – problem of moral luck
- Equality under the law

If there are predictive variables that inform riskiness, then does this still mean people
are equal under the law?

Moral Luck:

When a person is assigned blame or praise for an action or its consequences even if
the person did not have full control over either the action or its consequences.

Should we use data?

We have the means and capacities to attain data however, we risk reifying
disparities (poor, racial minorities) with a scientific tool that justifies punishment of
people not for what they have done, but for who they are. However, the accuracy
and efficiency of successful Risk Assessment instruments should lead to a better
safety and security.

A choice of nightmares:

Have no discrimination of risk

- Socially harmful but, fair?

Have no discrimination but all non-custodial sentences (no prisons):

- Potentially very dangerous
Actuarial sentencing but throw out variables causing ethical problems:
- Assessment becomes less predictive

Use actuarial sentencing with all of the variables:

- Seemingly accurate prediction but ethical problems

Return to clinical judgement:

- Merely the human, intuitive counterpart to the actuarial
- Less rigorous version of categorisation of judgement
- Less mistakes, similar to predictive tools