The construction of ‘risk’ in bail decision-making in the Magistrates’ Court of Victoria

C. Gledhill

Monash University, Melbourne, Australia, cfgle1@student.monash.edu

Risk has become a buzzword in theorising in the last 30 years beginning with theorists such as Beck (1986) noting the rise of the ‘risk society’. More recently, a number of scholars have noted the rise of risk in criminal justice systems in conjunction with the implementation of neoliberal policies and ideologies (e.g. Hannah-Moffat; O’Malley). In particular, risk in criminal justice becomes focused purely on the individual, rather than on broader catastrophic risks as theorised in Beck’s work. Closer examination of processes such as bail and parole applications are likely to demonstrate how risk is understood and negotiated in practice.

This paper draws from doctoral research on bail decision-making in the Magistrates’ Court of Victoria. In Victoria, bail decisions are at face value based around the idea of acceptable or unacceptable risk. If risk can be reduced to an acceptable level, then a person is likely to be granted bail. Using in-depth court observations and interviews with key informants, I argue that what is considered to be ‘risky’ is subject to continual change and judicial discretion. Moreover, riskiness, while constructed as a logical, scientific calculation based on individual risks and needs, is profoundly structural in nature and often depends on the extent to which an applicant can demonstrate access to housing, drug treatment, mental health treatment and employment. I argue that such a focus raises serious concerns in the context of Victoria’s rising remand rates and unequal access to programs.

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