Bail, Punishment, and Specialized Court
Kelly Hannah-Moffat and Paula Maurutto: Shifting and Targeted Forms of Penal Governance: Bail, Punishment, and Specialized Courts
Specialized courts are motivated by therapeutic and preventative goals, and they rely on relationships with local community groups to create a new range of interactions with the court and the offender o Offering an innovative alternative to penal excess by introducing creative ways to administer justice A focus on assemblages enables a more slightly different understanding of the integration of community into punishment, in ways that move beyond the presumption that the community agencies involved in these courts lack agency and merely act on behalf of the State o Communities are actively involved in developing and implementing these assemblages and practices. Argue that the preventative therapeutic practices occurring in specialized courts have not eroded punishment— instead, they have reassembled practices of welfare, treatment and punishment and have given rise to new and different forms and logics of punishment.
Specialized court practices
Designed as an alternative way to manage the social, treatment and cultural needs of specific populations and to transform the adversarial court process into a more responsive environment Co-ordinate social services with the goal of imposing meaningful sanctions, enlisting the help of community agencies to keep offenders in the community by providing intensive support, treatment and monitoring in an effort to alter chronic and recurring forms of criminal behavior Therapeutic justice constructs crime as a symptom of the offenders illness or deficit in his character, and focuses on the offenders rehabilitation within a broader framework of offender accountability and responsibility Combine legal, therapeutic and welfare knowledge with multidisciplinary team-based regulatory practices
Assembling welfare, treatment and punishment
Specialized courts target persistent offenders for a series of pre-sentence interventions that expand the states penal power through non-punitive strategies o To participate in programme, defendants must plead guilty and volunteer to participate in the court (has been characterized as coerced volunteerism) o Offenders informed that if they plead guilty and complete court mandated program they will not be incarcerated and sentenced to a community sentence (probation for example)
Courts, in co-ordination with community partners seek to address the underlying holistic needs of the offender in order to ensure successful completion of a treatment programme and long-term lifestyle changes o Most courts assigned court worked to conduct initial assessments and recommend appropriate and available treatments and social service provisions o Courts provide range of social, physical and mental health services that extend beyond ordinary treatment services (often provide basic welfare assistance) o Offenders access to intensive social welfare services is not voluntary; it coincides with the imposition of a range of more intrusive and disciplinary conditions that ensure and regulate their attendance and compliance with service goals Courts legitimated as a form of preventative therapeutic justice as an alternative to punishment justice
Bail strategies, conditions and specialized courts
Specialized courts attempt to reconcile welfare treatment with punitive and responsibilizing crime-control practices o Depend heavily on bail as a strategy to monitor and facilitate and offenders treatment and progress between legal finding of guild and formal sentencing o Bail used to impose onerous, therapeutically justified conditions on an offenders for extended periods of time thereby intensifying punishment that masked penal and administrative boundaries o Bail used to manage risk, compel treatment and require offenders to use and report to community agencies providing welfare services Drug treatment courts have most punitive conditions o Offenders undergo an extensive assessment process with a treatment centre and others, including the presiding judge o Courts monitor offenders by requiring them to appear before the court regularly o Each meeting offenders asked about their drug use and life in general o Expected to sign waivers to agree to random drug testing o 12-18 month drug treatment programmes characterized as long and difficult but better than ending up in jail Community courts use pre-sentence community service orders and bail to regulate high risk, difficult to manage clients with complex needs o A triage team is responsible for assessing circumstances and needs and develop a plan for consideration by the judge o Difficult to manage offenders place under community supervision (bail with proscriptive conditions) Ontario’s early intervention domestic violence court required offenders to complete a partner abuse response services (pars) counseling programme
o Court mandated programme often a condition of bail; consists of 16 weeks of specialized counseling and education during which participants learn non-violent way to deal with anger management Practice and conditions imposed by specialized courts goes beyond treatment and penalty; they are interwoven with strategies designed to produce a governable liberal responsible subject o Conditions prepare offenders for freedom by mobilizing particular techniques of self-governance, while operating modes of surveillance that push boundaries of acceptable conduct o Like parole subject, participant in specialized court is expected to be selfregulating and responsible for making better choices Specialized courts make effort to enact punishment that is meaningful and proven o When requirements have been satisfied, the judge considers the offenders progress while on bail and the amassed case file to determine a sentence based on the severity of the crime and the offenders history o Offenders are not sentenced until they have completed the treatment programme or decide to leave the programme
Community integration and punishment practices
Community actors in specialized courts often understood as a new mechanism of neoliberal crime control that extends the reach of the state into society Community agencies play a role in reframing how offenders are governed The assemblages formed between a court and community organizations have significant impacts on the configurations of the court and punishment practices Strong community involvement in policing, monitoring and accumulation of offender information is common feature of specialized courts
Conclusion
Specialized courts reinforce effect of well-meaning therapeutic intervention while acknowledging how these courts temper unrestrainted punitive inclinations Participation in these programmes gives offenders a chance to avoid jail time and to get help but it exposes a select group of offenders to extended surveillance, monitoring and intervention, to which they would not be subjected in regular courts Specialized courts exemplify how welfare initiatives are interconnected with punishment and distort the boundaries between welfare and punishment o Punishment in this context is resource-intensive and relies heavily on penal welfare strategies Courts and community agencies collaborate in mutually beneficial relationship to craft and manage treatment services, bail conditions and ultimately sentencing
The integration of community organizations into these courts, to monitor and treat offenders on bail and before sentencing, changes the relationship between punishment and welfare, the role of the community in penality and the function of pre-trial sanctions. A focus on these interventions also clarifies the ‘softer’ end of the punishment continuum, enabling nuanced analyses of how specialized courts are spreading the carceral net and producing new architectures of risk/need management for select offenders. Formal introduction of multi-disciplinary treatment and community agencies into the courts inner sanctum has shifted the traditional boundaries and disciplinary distinctions of law Practices we observe reinforce neoliberal emphasis on efficiency, self-government and individual responsibility as well as an intertwined emphasis on disciplinary strategies, dependency reduction, welfare stipulation and treatment of pathologies Specialized courts undeniably extension of punitive state, using therapeutic forms of coercion and producing more onerous experiences of punishment
Specialized courts are motivated by therapeutic and preventative goals, and they rely on relationships with local community groups to create a new range of interactions with the court and the offender o Offering an innovative alternative to penal excess by introducing creative ways to administer justice A focus on assemblages enables a more slightly different understanding of the integration of community into punishment, in ways that move beyond the presumption that the community agencies involved in these courts lack agency and merely act on behalf of the State o Communities are actively involved in developing and implementing these assemblages and practices. Argue that the preventative therapeutic practices occurring in specialized courts have not eroded punishment— instead, they have reassembled practices of welfare, treatment and punishment and have given rise to new and different forms and logics of punishment.
Specialized court practices
Designed as an alternative way to manage the social, treatment and cultural needs of specific populations and to transform the adversarial court process into a more responsive environment Co-ordinate social services with the goal of imposing meaningful sanctions, enlisting the help of community agencies to keep offenders in the community by providing intensive support, treatment and monitoring in an effort to alter chronic and recurring forms of criminal behavior Therapeutic justice constructs crime as a symptom of the offenders illness or deficit in his character, and focuses on the offenders rehabilitation within a broader framework of offender accountability and responsibility Combine legal, therapeutic and welfare knowledge with multidisciplinary team-based regulatory practices
Assembling welfare, treatment and punishment
Specialized courts target persistent offenders for a series of pre-sentence interventions that expand the states penal power through non-punitive strategies o To participate in programme, defendants must plead guilty and volunteer to participate in the court (has been characterized as coerced volunteerism) o Offenders informed that if they plead guilty and complete court mandated program they will not be incarcerated and sentenced to a community sentence (probation for example)
Courts, in co-ordination with community partners seek to address the underlying holistic needs of the offender in order to ensure successful completion of a treatment programme and long-term lifestyle changes o Most courts assigned court worked to conduct initial assessments and recommend appropriate and available treatments and social service provisions o Courts provide range of social, physical and mental health services that extend beyond ordinary treatment services (often provide basic welfare assistance) o Offenders access to intensive social welfare services is not voluntary; it coincides with the imposition of a range of more intrusive and disciplinary conditions that ensure and regulate their attendance and compliance with service goals Courts legitimated as a form of preventative therapeutic justice as an alternative to punishment justice
Bail strategies, conditions and specialized courts
Specialized courts attempt to reconcile welfare treatment with punitive and responsibilizing crime-control practices o Depend heavily on bail as a strategy to monitor and facilitate and offenders treatment and progress between legal finding of guild and formal sentencing o Bail used to impose onerous, therapeutically justified conditions on an offenders for extended periods of time thereby intensifying punishment that masked penal and administrative boundaries o Bail used to manage risk, compel treatment and require offenders to use and report to community agencies providing welfare services Drug treatment courts have most punitive conditions o Offenders undergo an extensive assessment process with a treatment centre and others, including the presiding judge o Courts monitor offenders by requiring them to appear before the court regularly o Each meeting offenders asked about their drug use and life in general o Expected to sign waivers to agree to random drug testing o 12-18 month drug treatment programmes characterized as long and difficult but better than ending up in jail Community courts use pre-sentence community service orders and bail to regulate high risk, difficult to manage clients with complex needs o A triage team is responsible for assessing circumstances and needs and develop a plan for consideration by the judge o Difficult to manage offenders place under community supervision (bail with proscriptive conditions) Ontario’s early intervention domestic violence court required offenders to complete a partner abuse response services (pars) counseling programme
o Court mandated programme often a condition of bail; consists of 16 weeks of specialized counseling and education during which participants learn non-violent way to deal with anger management Practice and conditions imposed by specialized courts goes beyond treatment and penalty; they are interwoven with strategies designed to produce a governable liberal responsible subject o Conditions prepare offenders for freedom by mobilizing particular techniques of self-governance, while operating modes of surveillance that push boundaries of acceptable conduct o Like parole subject, participant in specialized court is expected to be selfregulating and responsible for making better choices Specialized courts make effort to enact punishment that is meaningful and proven o When requirements have been satisfied, the judge considers the offenders progress while on bail and the amassed case file to determine a sentence based on the severity of the crime and the offenders history o Offenders are not sentenced until they have completed the treatment programme or decide to leave the programme
Community integration and punishment practices
Community actors in specialized courts often understood as a new mechanism of neoliberal crime control that extends the reach of the state into society Community agencies play a role in reframing how offenders are governed The assemblages formed between a court and community organizations have significant impacts on the configurations of the court and punishment practices Strong community involvement in policing, monitoring and accumulation of offender information is common feature of specialized courts
Conclusion
Specialized courts reinforce effect of well-meaning therapeutic intervention while acknowledging how these courts temper unrestrainted punitive inclinations Participation in these programmes gives offenders a chance to avoid jail time and to get help but it exposes a select group of offenders to extended surveillance, monitoring and intervention, to which they would not be subjected in regular courts Specialized courts exemplify how welfare initiatives are interconnected with punishment and distort the boundaries between welfare and punishment o Punishment in this context is resource-intensive and relies heavily on penal welfare strategies Courts and community agencies collaborate in mutually beneficial relationship to craft and manage treatment services, bail conditions and ultimately sentencing
The integration of community organizations into these courts, to monitor and treat offenders on bail and before sentencing, changes the relationship between punishment and welfare, the role of the community in penality and the function of pre-trial sanctions. A focus on these interventions also clarifies the ‘softer’ end of the punishment continuum, enabling nuanced analyses of how specialized courts are spreading the carceral net and producing new architectures of risk/need management for select offenders. Formal introduction of multi-disciplinary treatment and community agencies into the courts inner sanctum has shifted the traditional boundaries and disciplinary distinctions of law Practices we observe reinforce neoliberal emphasis on efficiency, self-government and individual responsibility as well as an intertwined emphasis on disciplinary strategies, dependency reduction, welfare stipulation and treatment of pathologies Specialized courts undeniably extension of punitive state, using therapeutic forms of coercion and producing more onerous experiences of punishment
