The paradox of pre-conviction punishment: the experience of living with bail conditions

Reflections from accused: Advice on navigating life on bail

“…A final policy recommendation, which echoes other scholars and court officials (Lauzon, 2016;Myers, 2017Myers, , 2019Sprott & Myers, 2011;Yule et al, 2022), is the imperative to avoid assigning conditions that are not clearly necessary in order to protect public safety or welfare. Breaches of conditions, and particularly those governing non-criminal behaviour, are used as evidence by accused that the system sets them up to fail and leaves them feeling resentful.…”

“…A growing body of scholarship documents how accuseds' presumption of innocence and the right to reasonable bail is potentially jeopardised when they are remanded into pretrial custody or released into the community with onerous conditions that restrict their behaviour (Gray, 2017; McLellan, 2009; Myers, 2017; Shammas, 2014). While accused themselves typically express relief when they receive bail instead of jail (Yule et al., 2022), they are also acutely aware that being released with conditions puts them at risk of accruing additional criminal charges, even for non‐criminal behaviour, if they are caught breaching their conditions (Canadian Civil Liberties Association, 2014; John Howard Society of Ontario, 2013). The purpose of this article is to better understand how accused navigate living with bail conditions.…”

“…While the voices of accused themselves are absent from much of the research, the work that does include them provides concrete examples of the challenges – as well as opportunities – they experience when living in the community with bail conditions. For example, accused in Yule et al.’s (2022) study described living with conditions as having ‘freedom within constraint’ that produces certain pains. On the one hand, many accused felt relieved that they were released from jail, and believed that anything is better than custody.…”

“…The overwhelming consensus among Canadian scholars and legal professionals is that bail is arduous for accused individuals (Canadian Civil Liberties Association, 2014; John Howard Society of Ontario, 2013;Myers, 2017Myers, , 2019Schumann, 2018;Yule et al, 2022). While the voices of accused themselves are absent from much of the research, the work that does include them provides concrete examples of the challenges -as well as opportunities -they experience when living in the community with bail conditions.…”

“…On the other hand, those same accused felt anxious about possible breaches and taking individual responsibility when balancing their conditions within the broader context of their life circumstances (i.e., keeping track of appointments without having a watch or a schedule). Their findings reveal that living with bail conditions can feel like being incarcerated and make accused feel like they are ‘set up to fail’, yet they also provide some accused with access to much needed resources as well as the incentive to abstain from drugs and unhealthy relationships (Yule et al., 2022). In this way, bail conditions, like parole and probation conditions, can be conceptualised as serving a dual purpose: to produce responsible citizens while also subjecting them to increased modes of surveillance in the community (Turnbull & Hannah‐Moffat, 2009).…”