By Ilya Klauzner; Steve Yeong

Background

There are two bail authorities in New South Wales (NSW): the police and the courts. These authorities are tasked with determining whether an accused person should be held on remand prior to the finalisation of legal proceedings. Remand is associated with adverse social, economic, legal and emotional outcomes for the individual and represents a significant financial burden to the state. It is, therefore, crucial for policymakers to understand what factors drive the bail decision-making process. This bulletin seeks to understand the application of the current NSW bail laws (Bail Act 2013 (NSW)). Specifically, it examines the relative importance of defendant (e.g., age, gender and Aboriginality) and case characteristics (e.g., prior offending, the number and nature of the offences to which the defendant is accused) in bail decisions. Consistency of bail decisions across police areas and courts is also considered.

Key findings

Bail determinations in NSW between January 2015 and November 2019 are examined. The findings can be summarised as follows: Legal factors, including the number of concurrent offences, prior offences and prior prison sentences, strongly increase the likelihood of bail refusal by the police and court. Defendants accused of a Show Cause offence, which carries a presumption against bail, are far more likely to be refused bail than other defendants.Some extra-legal factors are also associated with a significant increase in the probability of being bail refused. Adult Aboriginal defendants are more likely to be bail refused by the police than non-Aboriginal defendants, while male defendants and those aged between 35 and 44 years are more likely to be bail refused by both the police and the courts.There is substantial variation in bail decisions across police jurisdictions and magistrates for matters with equivalent case characteristics. Moving between different police jurisdictions or magistrates may have a greater impact on the probability of bail refusal than many legal factors, including prior court appearances and bail breaches.The police and courts are largely influenced by the same factors in their bail decisions. However, there is evidence to suggest that police are imposing a higher risk threshold than the courts. Further, the police are more likely to refuse bail for domestic violence and/or alcohol related offences than the courts.Generally, factors influencing bail refusal are similar for adults and juveniles. However, breaches of bail have a larger influence on the probability of juveniles being refused bail compared with adults. Extra-legal factors (e.g., gender) also seem to be less important in bail decisions involving juveniles.

Conclusion

Legal factors, in particular offence type and prior offending, have the largest impact on both the police and court decision to refuse bail. The influence of certain extra-legal factors, including Aboriginality, in bail determinations and the substantial variation across police jurisdictions and magistrates warrants further research.

(Crime and Justice Bulletin No. 236). Sydney: NSW Bureau of Crime Statistics and Research. 2021. 32p

Sandra G. Mayson

Police, prosecutors, judges, and other criminal justice actors increasingly use algorithmic risk assessment to estimate the likelihood that a person will commit future crime. As many scholars have noted, these algorithms tend to have disparate racial impacts. In response, critics advocate three strategies of resistance: (1) the exclusion of input factors that correlate closely with race; (2) adjustments to algorithmic design to equalize predictions across racial lines; and (3) rejection of algorithmic methods altogether. This Article’s central claim is that these strategies are at best superficial and at worst counterproductive because the source of racial inequality in risk assessment lies neither in the input data, in a particular algorithm, nor algorithmic methodology per se. The deep problem is the nature of prediction itself. All prediction looks to the past to make guesses about future events. In a racially stratified world, any method of prediction will project the inequalities of the past into the future. This is as true of the subjective prediction that has long pervaded criminal justice as it is of the algorithmic tools now replacing it. Algorithmic risk assessment has revealed the inequality inherent in all predictions, forcing us to confront a problem much larger than the challenges of a new technology. Algorithms, in short, shed new light on an old problem. Ultimately, the Article contends, redressing racial disparity in prediction will require more fundamental changes in the way the criminal justice system conceives of and responds to risk. The Article argues that criminal law and policy should, first, more clearly delineate the risks that matter and, second, acknowledge that some kinds of risk may be beyond our ability to measure without racial distortion—in which case they cannot justify state coercion. Further, to the extent that we can reliably assess risk, criminal system actors should strive whenever possible to respond to risk with support rather than restraint. Counterintuitively, algorithmic risk assessment could be a valuable tool in a system that supports the risk.

Yale L. J. 2218 (2019) Yale Law Review,