Unintended consequences of multiple bail conditions for youth.

Author:Sprott, Jane B.
Position:Canada
 
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While the youth crime rate in Canada has been generally declining over the last decade, the rate of charging youths for failing to comply with bail release conditions has been increasing (Sprott 2012). Anyone walking into a youth court and observing bail hearings would likely have little difficulty understanding why youths who are released return to court for failing to comply with conditions. Conditions such as not being allowed to see friends or relatives who had nothing to do with the incident; not being allowed to set foot on any public transportation vehicles or property; or not being allowed to visit a vaguely defined area of the city make it clear that many youth will inevitably violate their conditions and risk being charged with new offences. Yet those conditions were imposed by a Justice of the Peace (JP), (2) in part, to help ensure that the youth would attend court when required and not reoffend before his/her case had proceeded through the justice system.

Historically, most pre-trial concerns have focused on the use of detention (Barnhorst 2012; Sprott 2012). Thus, academic and policy discussions and amendments have generally focused on the use of detention, while the use and consequences of conditions have received considerably less attention. However, available data suggest that the majority of youths who have been detained for a bail hearing will, at some point, end up being granted bail. As a conservative estimate, (3) in most provinces for which there are data (4) (Newfoundland and Labrador, PEI, New Brunswick, Ontario, Manitoba, and Alberta), anywhere from close to 60% to over 70% of releases from pre-trial detention occur within one week. (5) Releases that occur within one week are likely to be youths who have had a bail hearing and been granted bail.

Case law (6) has generally maintained that bail conditions should be related to the grounds for detention as outlined in the Criminal Code (s 515(10); see, e.g., R v Hill 1989; Keenan v Stalker 1979; or, more generally, Trotter 2010). Therefore, they are to be used to ensure that the accused attends court (primary grounds) and does not commit further offences while on release (secondary grounds), and/or to "maintain confidence" in the administration of justice (tertiary grounds). Thus, conditions should be carefully crafted to fulfil only those purposes and should be made as burden-free as possible, given that the accused is legally innocent. Trotter (2010: 241), for example, has argued that conditions "ought to be approached with restraint and should only be imposed to the extent that they are necessary to give effect to the criteria for release."

However, there is growing evidence that bail release conditions may be serving a variety of different functions. An early 2004 review by Toronto-area judges of the day-to-day functioning of the YCJA (Harris, Weagant, Cole, and Weinper 2004) revealed, anecdotally, that release conditions often appeared to be imposed for purposes other than those intended in law. In some cases, release conditions appeared to be given when they were not necessarily relevant to the youth's circumstances or her/his offence but rather appeared to be imposed to "teach the youth a lesson" (Harris et al. 2004: 374). Such examples included a youth arrested for drug possession being barred from carrying a weapon (including explosives), despite the non-violent nature of the offence, and a youth arrested for possession of counterfeit money being bound by a curfew, despite the offence having occurred during the day.

More recent research, using larger, representative samples, has provided further evidence for those earlier concerns (Myers and Dhillon 2013; Sprott and Doob 2010). Myers and Dhillon (2013), for example, explored release conditions imposed across four different youth courts in Ontario and found that, in many instances, the conditions imposed had little relationship to the offence. Indeed, 40% of the conditions imposed--as spoken about and justified in open court--had no clear connection to the offence or the primary or secondary grounds for detention (ensuring court attendance and minimizing the risk of reoffending while on release). Thus, the authors argued that the conditions appeared "vague and far reaching" and there appeared to be a "tendency for Justices of the Peace to impose conditions without considering the relationship between the condition and the grounds for detention or facts of the case" (Myers and Dhillon 2013: 202). Given the lack of a relationship to the offence or grounds for detention, the purpose of the various conditions was unclear. However, there has been speculation that conditions may be attempting to achieve a variety of goals, from pre-conviction punishments to rehabilitation (Sprott and Doob 2010; Department of Justice 2007; Harris et al. 2004). Indeed, both Myers and Dhillon (2013) and Sprott and Doob (2010) found that "attending a treatment program"--an arguably rehabilitative goal--was imposed in anywhere from 30% to 40% of observed bail cases. Moreover, Sprott and Doob (2010) found that a treatment condition was significantly more likely to be imposed on girls charged with relatively minor offences than on boys. The authors argued that this was reminiscent of previous youth justice practices where, historically, girls were seen as needing welfare-based responses and treatment more so than boys.

In addition to the type and purpose of a specific condition, the sheer number of release conditions placed on youth has also been found to be problematic (Myers and Dhillon 2013; Sprott and Myers 2011; Cohen 2008). Release conditions refer to behaviours that are generally not criminal offences (e.g., attending school, obeying a parent, curfews). However, if a youth breaches one of the conditions, s/he can be charged with "failing to comply with an order" (FTCwO) thus turning non-criminal behaviours into criminal behaviours. Sprott and Myers (2011) found that, among a large, representative sample from an Ontario youth court, the more release conditions imposed and the longer youths were subject to them, the more likely they were to return to court for failing to comply with a condition. For example, 60% of those who had seven or more bail conditions and had cases that lasted longer than 193 days returned to court with failing to comply charges (with or without substantive (7) criminal offences in addition to failing to comply). This stands in contrast to those who had fewer than seven release conditions and were subject to them for over 193 days--roughly a third of them returned to court with failing to comply charges, a much smaller proportion. That finding held even when controlling for various factors such as the youth's age, criminal history, and current offences. Thus, it has been argued that numerous release conditions end up creating more crime (see also Sprott 2012). Currently, of all youth charged in Canada in 2011-12,16% had, as their most serious charge, failing to comply with an order. (8)

While research has generally, and perhaps not surprisingly, found that numerous conditions make it more likely that a youth will inevitably fail to comply with one of them, perhaps there is some benefit to imposing numerous conditions. Perhaps, for example, the more conditions that are imposed, the more likely the main legislated goals will be achieved; specifically, the primary and secondary grounds for detention. Although research has not revealed clear connections between a given condition and the legislated goals (see Myers and Dhillon 2013), it may be, more generally, that a greater number of conditions increases the likelihood of court attendance and remaining crime-free while on release. More conditions may, for example, result in increased monitoring and thus make it more likely that a youth will attend court. In addition, numerous conditions may help to reduce the likelihood of youths' committing a substantive (violent, property, or drug) offence by limiting where they are able to go and who they can associate with. Thus, although problematic in terms of generating more failing to comply charges, perhaps numerous conditions do provide increased monitoring and thus help to control the youth in the community, making it more likely that s/he will attend court when required and remain crime-free while on release.

While the effect of numerous bail conditions has received some research attention, the relationship between the volume of release conditions and the likelihood of achieving the two main legislative purposes of conditions remains unexplored. To date, only the relationship between numerous conditions and subsequent FTCwO charges has been investigated (see Sprott and Myers 2011). Thus, using a sample of youth court cases in Ontario, we investigate whether the imposition of numerous conditions relates to a greater likelihood of achieving the two main legislated goals. Specially, do more conditions relate to an increased likelihood of a youth appearing in court when required, and do more conditions relate to a reduced likelihood of reoffending while on release?

All of our data were obtained from youth court files. This means that we are using an "official" measure of reoffending (e.g., youths charged). There are, obviously, well-known problems with using official charges as a measure of offending (see Bala, Carrington, and Roberts 2009; Sprott and Doob 2008). Most notably, many crimes occur which do not come to the police's attention, and of those that do, only the more serious offences are likely to be formally charged. Moreover, there are a host of factors (e.g., age, school/home situation, use of drugs and alcohol) related to whether or not a youth will be charged by police for criminal behaviour (see Carrington and Schulenberg 2003). Unfortunately, there are no self-report measures available in Canada that include information on release conditions, offending, and...

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