Source

Quirouette, M (2018) “Community Practitioners, Risk Logics and Micro Politics in Lower Criminal Courts” Theoretical Criminology 22(4) 582-602

Keywords

Community corrections, complex risk/need, criminal courts, discretion, service providers

Introduction

Even if criminal justice support is not part of their official mandate, community practitioners often work with people who are criminalized, focusing on need related to homelessness, substance misuse and unemployment, factors which weigh heavily in assessments of risk related to recidivism and to judicial decisions generally. They engage with police, court actors, bail and probation officers daily, even if simply to supply information or confirm that they are indeed working on the factors justice is concerned about. In this article I focus on the important role they play in lower criminal courts, providing essential supports, verifying information and participating in monitoring and reporting to justice officials—negotiating care and control for their clients in conflict with the law.

Writing about large shifts in penal regulation, Garland (2001) and others (e.g. Cohen, 1985; Feeley and Simon, 1992) focused on the fading of welfare approaches and the emergence of a new penal era defined by actuarial and managerial approaches to social control. Non-profit sectors have variously been described as responsibilized, co-opted and colonized by criminal justice concerns about assessment, supervision, risk management and punitive regulation (Fitzgibbon, 2011; Mythen et al., 2012; Tomczak, 2017; Trudeau, 2007; Worrall, 2008). The post-welfare phase is said to have resulted in penal ‘net widening’, with community practitioners and agencies charged with surveillance and punitive duties related to individuals on bail, probation and parole.

Highlighting the importance of discretion, many have demonstrated that while frontline practitioners are affected by actuarial or managerial pressures, they find ways to support clients by adapting standardized risk tools, logics and supervision policies (Deering, 2011; Goddard, 2012; Kemshall and Maguire, 2001; Lipsky, 1980; Lynch, 1998; Maynard-Moody and Musheno, 2003; Werth, 2016). What is less well understood however is how (and to what end) discretion is used by practitioners working with clients facing intersecting problems related to poverty, discrimination, homelessness, mental health and dementia, who find themselves before the criminal courts and are referred to as being ‘complex-needs’ and risky. It is essential to consider this issue, given the institutional cycling and over representation of multiply disadvantaged individuals (hereafter ‘clients’) in emergency and criminal justice systems.

Working on intersecting issues, practitioners cross traditional agency and disciplinary boundaries and can become important agents of resistance, advocacy and reform. Their understandings of risk and willingness to offer support and supervision inform a great deal of legal decision making. Nevertheless, few have examined these ‘infrastructures of risk communication’ (Ericson and Haggerty, 1997: 5) as they are experienced by community practitioners working with justice-involved clients. Addressing this gap, I analyse how they operate as brokers for clients and criminal justice courts, mobilizing knowledge across systems to manage and problem-solve. I focus on how they assess offender risk/need and responsivity and contribute to courts knowledge about and understanding of their clients. I argue that they extend the power and reach of law to enhance their therapeutic projects, but also work to deflect the power of law and redirect discourse towards evidence-based, medicalized, cultural and sociological or rights-based perspectives.

In the next sections I illustrate how community practitioners mobilize knowledge, making choices and manipulating narratives that have important effects on release planning, diversion, specialized courts and community conditions. I discuss the ‘micro-politics of risk interpretation’ and show how interventions are informed by multiple stakeholders with different understandings of what risk management should look like. Then I focus on how practitioners manoeuvre the courts working ‘with’, ‘for’ or ‘against’ the grain: offering supports, service or housing; ‘vouching’ for or documenting client progress, good character, compliance and potential; or educating judicial actors about social context, or about therapeutic understanding around mental health, substance use or trauma. I argue that non-justice actors contribute important medical, cultural and sociological knowledge that can improve practices in lower criminal courts, particularly by destabilizing assumptions about criminogenic risk management, poverty, disadvantage and ‘choice’.

The analysis reported here is based on findings from a larger project focusing on problem-solving strategies and coordination between community practitioners and the criminal justice system in a large Canadian city. This article draws from three sources of data: (1) in-depth semi-structured qualitative interviews with 105 stakeholders; (2) document analysis, focusing on policy, organizational material, case notes and tools; and (3) field observations including 30 site visits, nine shadow shifts, 40 hours of court observation and 40 hours of local, regional and provincial committee meetings, workshops and webinars. Rather than relying exclusively on the study of law and policy, I interviewed and observed practitioners to learn more about how they adapt repertoires of care and control and contribute to shaping court practices. Interview respondents included 60 case managers and 19 managers and directors (focusing on housing, mental health, addiction, diversion or re-integration services), 15 justice professionals (Legal Aid Ontario (LAO) lawyers, bail and probation officers, police), five clinical staff (nurses, psychiatrists) and six other service experts. All 105 interviewees worked with justice-involved clients. In this article, I focus on the 79 interviews with frontline staff and managers from community agencies.¹ Roughly half were involved with criminal courts and justice, working with programmes focused on diversion or re-integration, specialized courts or doing in-reach work with people in jail or offering drop-in or housing-based supports. The other half worked in community agencies (emergency shelters, safe houses, drop-ins, outreach, supported housing) that had no formal connection to justice—yet they too interacted daily with police, lawyers, probation, bail or jail staff.

Community corrections and conditional release orders

Diversion and accountability programme staff talked about focusing on one primary goal: getting people out of jail ‘at any cost’—often in exchange for onerous conditions (ranging in number from five to 23). Conversely, other practitioners (and lawyers), talked about delaying and avoiding bail hearings when possible, preferring instead to negotiate plea bargains and agreeable release plans with crown counsel before court appearance. In both cases, a non-adversarial approach predominated with little attention paid to guilt, innocence or even the rights of defendants. Community practitioners are often involved with legal and court-based process, via mandated programming and voluntary supports, but they are not usually invited to deliberate about guilt or rights. They assess needs and risks, supervise orders and target problems related to housing, mental health, anger management, drug addiction and so on. They engage with criminal courts about conditions of release, and also help clients with tenant law issues, the forensic mental health system, municipal tickets and interactions with various other authorities.

People who face poverty and disadvantage are grossly over represented in the criminal justice system and for a number of reasons, often find themselves in conflict with the law (Lens, 2016; Wexler, 1970). In many cases, individuals get trapped in a costly, unhealthy and dangerous cycle of stays in jails, hospitals and emergency shelters (Gaetz, 2010; Hoch et al., 2008; Laird, 2007) and are easily caught up because of ‘misdemeanour justice’ (Kohler-Hausmann, 2013); that is, summary offences or less serious crimes/charges. This does not mean they are spared the burden of court orders and community supervision; defendants without private representation are most likely to end up with onerous bail conditions and get referred to diversion, accountability or specialized/therapeutic courts programmes (drug treatment, alcohol and mental health). Adding to the number of offendersindividuals—convicted and not convicted—who are managed through conditions in the community, many criminal cases often (48.2 per cent) now begin in bail court (MAG, 2012). Clients Individuals with 'complex-needs' are often denied bail or have multiple bail conditions imposed. They are also affected by the growing popularity of pre-charge diversion, conditional sentences, conditional discharge and other extra-judicial practices that enforce community supervision and legal conditions.

Disadvantaged defendants struggle with both legal representation2 and community supports, and often agree to burdensome conditions imposed by the court in order to avoid jail. Facing a non-adversarial process full of negotiation and hoop-jumping, even those with non-conviction dispositions cases (no finding of guilt) will have release orders that include therapeutic, prohibitive conditions and monitoring. Released on bail (or probation and /parole), they are subjected to targeted governance that is repressive, racialized, gendered and classed (Turnbull and Hannah-Moffat, 2009; see also Gray, 2013; Moore, 2011; Singh, 2012). Accused individuals who are granted judicial interim release (bail) have an average of eight conditions, many of which are not tied to the alleged criminal charges but focus on behaviour modification or improvement (JHSO, 2013: 8). Individuals on community release orders may be subject to prohibited behaviours (no weapons, no go, no contact, no alcohol), obligations (keep the peace, see psychologist, maintain residence) and other orders that require them to engage with service providers for programming, housing, therapy and so on. Breaches of conditions are extremely common3 and can have devastating cumulative effects (Myers, 2016; Myers and Dhillon, 2013). This is especially relevant for some clients because of their dependence on community supports and their lack of private options and personal and social supports.

As theorized by Turnbull and Hannah-Moffat (2009), the ‘conditioning’ of offenders frames them as deficient, dysfunctional and in need of reform and surveillance. Conditions criminalize ordinary behaviours and require adherence to strict rules, which is exceptionally difficult for multiply disadvantaged people facing challenging circumstances. This ‘conditioning’ also positions community practitioners as key partners in projects that aim to govern risky individuals. As such, they work to incorporate prisoners into their communities (Kaufman, 2015), while simultaneously expanding the carceral net and supporting surveillance practices (Tomczak, 2017). Detailed accounts have documented how practitioners employ contradictory strategies for care, control, rehabilitation, discipline and punishment—using considerable discretion (Beckett and Herbert, 2010; Hannah-Moffat et al., 2009; O’Malley, 1999; Robinson and McNeill, 2004). Despite the richness of these accounts, relatively little attention had been paid to discretion in community corrections within socio-legal and punishment literatures (DeMichele, 2014; Robinson, 2016), especially in terms of adult justice-involved, multiply disadvantaged clients—a gap this article addresses.

The next sections outline how community practitioners work ‘with’, ‘for’ and/or ‘against’ the grain of justice, in a departure from previous accounts, some of which oversimplified or glossed over contradictions. I show how coordination, collaboration and conflict overlap as stakeholders’ problem-solve and negotiate legal understandings about risk.

Governing risks with, for and against the criminal justice system

Criminal justice policymakers and community practitioners are aware of the need for inter-disciplinary and multi-agency coordination and cooperation. Community organizations engage with the criminal justice system, because health, housing and justice issues interconnect in ways that can exacerbate problems, instability and ongoing criminality (e.g. Draine and Solomon, 1994; Hopper et al., 1997; Metraux and Cullhane, 2006; Somers et al., 2013). Problem-solving efforts are shaped by legal concerns about risk for public safety, but community practitioners also contribute to more holistic understandings of why and how risk and needs matter. Interventions are loosely based on criminogenic categories but extend beyond that, incorporating clinical, sociological and cultural knowledge and based on personal frontline experiences.

In some cases, practitioners have daily contact with the courts on their clients’ behalf, ‘writing letters for sentencing hearings, for actual hearings, or for pleading out’ (C027). They also make submission by calling or emailing court workers or duty counsel to confirm attendance, progress, compliance and attitude or to advocate for their clients. One worker summed it up explaining how: ‘we have to let them know “this isn’t some floating freak” in the community, they’re connected and we know them and we can support them in this way and this way and this way’ (C027). For community practitioners, working with, for or against justice can sometimes mean reassuring the judiciary along the lines of ‘trust me, we’re working on things’ (C038). To varying degrees, practitioners: (1) interact, collaborate and coordinate with justice officials; (2) work for and report to judicial authorities; and (3) generate important push-back and resistance.

Admittedly, the notion of working with, for or against criminal justice systems is a heuristic device. Readers should be mindful that mandated or not, practitioners can work in all three capacities. These three ‘types’ should not be considered mutually exclusive, nor should their distinctive features be overlooked. The productive work of skilful practitioners who use interactions with the justice system to complement, educate, challenge and resist criminal justice practices is often facilitated by proximity, familiarity and collaborative interactions. As the following will show, ‘wearing many hats’ enables them to transmit and transform punitive/statutory understandings and enactments of risk.

Working ‘with’ the criminal justice system

Interview and fieldwork findings suggest that community practitioners often feel obliged to formally and informally engage with, coordinate, collaborate and even partner with the criminal justice system. They help clients with advice, system navigation, referrals, programming, case management, letters and even accompaniment to court. They also interact with justice professionals via committee work, workshops and other initiatives meant to generate conversation across institutional, disciplinary and agency boundaries, clarify problems and develop collaborative solutions. Many interviewees said they never expected to work with the courts, or with police, or probation, but acknowledged the importance of understanding, adapting and ‘speaking the right language’.

The justice system is poorly equipped to deal with clients who might have undiagnosed issues (Fetal Alcohol Spectrum Disorder (FASD)), complex health needs (i.e. advanced cancer, HIV) or who present with challenging behaviours (memory issues, non-compliance). In most cases, criminal justice courts do not provide housing or mental health treatment and cannot address social problems like poverty (Lens, 2016). Lawyers, bail supervisors and probation officers are asked to reach out to community service providers to negotiate access for their clients, and to build and maintain partnerships with organizations and practitioners willing to work with clients in the criminal justice system. Partly because community criminal justice services are severely under-funded (JHSO, 2015), people in conflict with the law often get justice-related support from staff and case workers in homeless shelters or those working for health-related agencies like hospitals and mental health organizations. Practitioners who do not work ‘for’ the justice system, like case managers, often still provide support and engage with the system (police, courts, corrections) because they know criminalization affects all areas of their clients’ lives. They know, for example, that without housing, income or support, individuals released to the community can easily ‘fall through the cracks or become repeat offenders’ and ‘need a case manager to advocate on their behalf and look at the bigger picture. Not just housing, not just medications, not just money, not just the community they’re living in; ALL OF THAT put together’ (M006). When clients cycle in and out of the justice system—even without having been convicted or held very long in jail—courts rely heavily on input from case managers to make decisions about programme eligibility, bail, conditions of release, sentencing and even probation reviews. This often means confirming details about housing, medication, compliance and so on. Similarly, case managers in the community make decisions based on information generated by and gathered from their partners in the justice system.

Although time-consuming, practitioners can maintain frequent contact and closely monitor changes in clients’ lives, using relationships to better assess risk factors. Many want to help clients improve their lives, but also feel responsible for public safety. For example, one outreach worker talked about feeling obliged to ask police to charge a mentally ill and low-functioning man for masturbating in public (rather than bringing him to hospital for a psychiatric evaluation), because he was concerned about the risk this man presented to children. He then worked with the court and advocated for him to be placed in a penitentiary hospital (M006). Community practitioners can be the ‘eyes and ears’ for others who are not as well connected to clients, especially cases they deem risky.

Working ‘for’ the criminal justice system

Community practitioners help clients navigate the system, but they do more than interface and coordinate with justice institutions: also bidding for contracts and joint partnership grants that require them to offer care and control. Their work is shaped by systemic pressure, organizational culture and legal mandates, and they participate in therapeutic surveillance, often using coercion to enforce the programme’s good intentions (e.g. diversion from jail, abstinence). Collaborating with police, courts or corrections, community practitioners are faced with difficult decisions. Partnering and reporting to public health or public safety institutions (e.g. hospitals, forensics, courts, probation) requires them to align policies and practices with those of their more punitive and risk-averse collaborators. Interviewees talked about pressure to ‘sell out’, ‘buy-in’ or ‘bend-over’, explaining that compromise is required for access to certain spaces, funds and client sources.

Some community practitioners only do court-appointed work on an ad hoc basis—when bail programmes or duty counsel push special cases or they feel compelled to make exceptions. For example, shelter or housing workers, case managers, counsellors and other agency staff may agree to be named on conditional orders, vouch for a client’s progress and character in court or via letter, or talk to duty counsel to confirm a plan. They want to help get their clients out of jail, but are often reluctant to have their (or their organization’s) name on the official release papers. One commented, ‘what if I’m on vacation or sick something!? Then the bail’s invalid or messed up!?’ (C028). Another noted they felt ‘put in a position where we are never allowed to discharge the client, which is very dangerous’ (M002). Most resented the presumptions they could assume supervisory and reporting responsibilities, and were frustrated with the system downloading risk and responsibility (see also Singh, 2012). Shelter or programme staff who support clients under bail supervision, in diversion or on probation or parole are often put in a position where they must report attendance and progress to court authorities. Vouching for clients in court, they end up having to answer questions they do not want to have to answer, and as one practitioner said, ‘you easily back yourself into reporting dynamics’ (C028). Various types of ‘proxy surety’ relationships can perpetuate expectations that they are willing and able to take on criminal justice priorities or be embedded into legal structures.

Being named on a client’s court order means practitioners make legal promises about providing support services and maintaining contact. This is not always possible, especially with clients who have complex needs or have difficultly following rules, or who are transient or reluctant to engage. One worker described his strategy for satisfying the court’s concerns and helping clients without compromising professional integrity by (accidently) participating in breaching:

When a client refuses to meet, we can’t force them to work with us which means if we discharge them, we’ve now breached them, so it’s very tricky. So we’ll ask the court to word it as ‘must work with mental health service or agency’. That way if they don’t work out with us, for whatever reason, we can say ‘you might want to try another agency’, maybe this agency would have better luck or have some wiggle room. Many lawyers and probation officers are really good and will work around that.(M001)

Conditional supervision orders are often in place because of legal processes that are formally ‘voluntary’ opt-ins (e.g. diversion, specialized courts, community release). However, many interviewees commented on the pressures faced by clients who accept restrictive orders to avoid jail. One manager explained that court orders often stipulate that clients must allow the court team to access information from past and current community mental health supports and case managers, commenting: ‘[i]f you have to give consent, it’s fake. Even if a person signs, I don’t take that as true consent to speak to probation or bail [...] That’s frustrating and not fair’ (M004). This was a common complaint among respondents, and many said they use discretion to decide when consent needs to be more clearly established. In some cases, sharing information is important (e.g. to protect people, to qualify for supports); in other cases, it can be highly problematic and can lead to exclusion and punishment.

Recognizing the connections between need and risk is only a productive exercise if the intention is to support; otherwise, the connections can be used to justify further monitoring and punishing, blaming individuals for systemic issues. This tension is negotiated differently by each community service provider: some follow policy to the letter, while others are more willing to cover for their clients and be flexible. But when they agree to work ‘for’ the criminal justice system and to report back, notions of risk and need can become very slippery (Hannah-Moffat, 2004). Once liable for risk of harm to society, or threat to safety in the workplace (by being charged with monitoring offenders and sharing information), the other needs (and experiences of trauma) they assess can become part of how risk is calculated. Legal/correctional/community partnerships provide alternatives to custody but are also multi-pronged regulatory projects. As shown elsewhere, frontline practitioners enjoy borrowing from courts power to compel clients to do what is best (e.g. Quirouette et al., 2016). The ‘carrot/stick’ analogy is used liberally and clients are sometimes arrested for breaching, or even put in jail for a few days or a few weeks ‘for their own good’ (bail gets revoked temporarily) and to teach them a lesson (e.g. to take their medication, go to appointments, show motivation). Arrest is also used as a tool to make contact for therapeutic reasons (see also Jain, 2015; Stuart, 2015) or for ensuring clients get psychiatric evaluation. Thus, control is often combined with care, especially when there is risk to self or to others.

Working ‘against’ the criminal justice system

In many cases, respondents expressed and demonstrated commitment to the theory that care and control should be separate so as to protect the integrity of each endeavour. Working ‘outside of’, and separately from mainstream justice institutions, some practitioners prioritize client-led services and respite in low-barrier spaces protected from medicalization and risk-based logics imported from the criminal justice system (e.g. records, judicial control, diagnosis, assessment). Adamant about their refusal to work ‘for’ the system, they talked about being careful when engaging ‘if at all’. Sometimes this caution was paired with a stated devotion to protesting inequality and advocating for client rights. Some agencies and practitioners are explicitly dedicated to supporting people in conflict with law or in prison, prioritizing client centredness and pushing for systemic change. In many circumstances however, community practitioners are less overt about resistance and pushback. Nonetheless, they work ‘with’ and ‘for’ the criminal justice system, and find ways to subvert, redirect or educate without taking a formally oppositional stance.

Practitioners try to mitigate the negative effects of criminalization on their clients, and interviews revealed they often do this work ‘undercover’ to maintain good relationships with justice partners and gatekeepers. For example, those doing in-reach at institutions described a careful balancing act, trying to stay true to their professional ethics while maintaining good enough relationships to maintain access. Once ‘inside’ (e.g. holding cells, or wards), they defer to authorities in charge of such space. However, they also cultivate practices of covert action, opposition or resistance. For example, going ‘off script’ during programmes or bending the rules to make calls or help clients.

Respondents spoke at length about their clients being victimized, criminalized, assessed, monitored and set up to fail, demonstrating how clients are at risk in many ways. They witnessed countless incidents of abuse, entrapment and inhumane treatment inflicted on their clients by various criminal justice authorities including police beatings as well as extended stays in jail and segregation where clients with brain injuries, PTDS, HIV and schizophrenia suffer tremendously. Although some specified they would not lie and would always report threats to safety, others stressed their dedication to protecting vulnerable clients by any means possible. Some talked about how they would never report non-compliance or breach, expressing serious concerns about criminal justice policies and discriminatory practices. Engaging with the criminal justice system to support and advocate for clients can be a juggling act, challenging even the most experienced workers. In addition to concerns about how their clients might be treated, they were reluctant to report because doing so could sacrifice trust, which could be earned by dealing with problems without ‘snitching’ or reporting to authorities.

Other case workers, housing workers and frontline staff talked about covering for clients—mostly for breaching conditions (e.g. curfew, sobriety), but also for more serious property offences (e.g. break and enter, dealing drugs). Instead of reporting them for being ‘risky’, they focused on how their clients were ‘at risk’ by being criminalized, confronted by police, tossed around the court system or mistreated in overpopulated remand centres. One substance abuse support worker protected a woman who robbed her office:

I didn’t want to kick a girl out for stealing my iPod. What is the risk to her if I kick her out versus having her stay here? Back to homelessness and in breach. So what I did was I put a deadbolt on my office door, so she can’t get back in. I solved my problem, I put a camera above the office […] Sometimes you can problem-solve right there and you don’t need to go all the way up to police. I don’t see any risk more prevalent than the risk of being criminalized. (C008)

Having known the client for many years, she knew positive momentum would be compromised if she breached, lost housing and went back to jail. Others framed breach of conditions as a state of ‘vulnerability’, talking and helping clients with ‘safety planning’ and with handling contact with police and other authorities/gatekeepers.

Acknowledging that alternative and sometimes oppositional practices are necessary, community practitioners negotiate with police and other criminal justice professionals. They also educate the judiciary (formally and informally) about the effects of structural factors and of practices that shape criminalization, wellness, stability and so on, using reports, position papers, workshops, employee secondment, guided visits, committee work and even testimonials for the media. Often, they advocate for clients by stressing the importance of context: lack of housing (shelter, transitional, supported, permanent and subsidized); discrimination (race-based, records-based, policing, drug laws); poverty; and lack of access to health, harm reduction and mental health services. Highlighting the complexity and overlapping effects of these experiences is an act of resistance—working ‘against’ the grain—because institutions like justice usually have a narrow focus for intervention (recidivism and risk) that positions the individual as the problem, or as a flawed and ‘fractured’ subject (Maurutto and Hannah-Moffat, 2006). Community practitioners have knowledge of and relationships with justice and are uniquely positioned to offer critical pushback since they understand the realities clients face in the community, and how these layer onto histories of trauma, racism and inequality, shaping behaviour and contributing to criminalization.

Encouraging more awareness of why context matters is an act of opposition because it forces the focus away from the ‘deficient’ or ‘deviant’ individual and towards the structural factors that are just as responsible. As one regional justice committee stated:

While individuals may experience risk and vulnerability due to their presenting health conditions and social circumstances, such risk and vulnerability is similarly attributable to a system that fails to effectively respond. Complexity, then, must be understood in relation to individual needs in interaction with the array of supports that a person is able—or unable—to access. (Newbery and Brown, 2015: 1)

This committee advocates for recognition of gaps in the system. In other cases, resistance can be about pushing for medicalizing (rather than criminalizing) mental illness and addiction, for example by supporting methadone and suboxone to replace or block opiates, shifting from ‘zero tolerance’ to harm reduction strategies. In extreme situations, desperate community practitioners will pressure police, court, probation and correctional staff by going to the media. This ‘last resort option’ was noted in multiple interview stories about clients mistreated or murdered by the police, incarcerated inappropriately and held in segregation despite serious medical conditions such as cancer, schizophrenia or HIV-related illness.

Micro-politics of risk interpretation

Community practitioners contribute to legal discourse from their own perspective as social workers, advocates and health and mental health care professionals, working together in assemblages of therapeutic surveillance (Moore, 2011) and punishment (Maurutto and Hannah-Moffat 2006, Hannah-Moffat and Maurutto, 2012). Community/justice initiatives have been described as ‘braiding together’ (Hutchinson, 2006) multiple strategies and styles of governance/discourses of care: various combinations of legal authority, social work philosophy and medical, psychiatric and pharmacological knowledge. I argue that the braid analogy is misleading, implying symmetrical or equal integration, sharing and power (see also Christie, 2016; Moore, 2011). Partnerships between legal systems and therapeutic or community partners are rarely equal and are often too chaotic and uneven to appropriately be described as a braid. Prior studies have shown how professional groups that collaborate must allow one framework to dominate rules, outcomes and language used (Hall and Slembrouk, 2009; Juhila, 2009). Others have shown how discourses merge to create new understandings (Moore, 2007). My findings suggest ‘law’ generally takes over in terms of coercive power, budget size and symbolic professional clout (see also McNeill et al., 2009; Moore, 2007, 2011; Quirouette et al., 2016). Contributions from community practitioners are not given the same weight as those from other non-judicial professionals in the courts like doctors or psychiatrists. Nonetheless, they add to the court’s knowledge about clients, affecting individual case outcomes and narratives that shape penal and legal change over time.

Cross-sector collaboration and interdisciplinary teams promote and embrace holistic understandings of risks/needs. Critics have focused on the stacking of punitive effects, but this work can also lead to improvements in legal practice, as well as short-term solutions to material problems like housing and case management. By applying the ideas of ‘dynamic risk/need’ differently, practitioners can shift narratives of responsibility, pushing justice institutions to rethink their logics around choice and compliance—for example, by avoiding practices that punish individuals for not having stable housing, for being socially isolated or for struggling with addiction and mental health issues, instead, shifting responsibility towards ‘the system’. Along these lines, Hannah-Moffat (2016) called for the uncoupling of risk and need and a rethinking of how structural risks can be dynamic. After all, why should all the change be at the individual level, when structural and environmental factors have such significant effects on outcomes like recidivism, compliance, health and stability?

It is critical to ‘separate risk and needs because the logic of each informs a different administrative and managerial approach (security versus welfare)’ (Hannah-Moffat, 2015: 116). Problematically, some practitioners conflate needs with risks, and contribute to punitive and exclusionary responses. Others take precautionary measures to protect private (and incriminating) case reports and other information. For example, one court and social support programme includes complex contracts, privacy agreements and protocols designed to prevent sections of case files, needs assessments and compliance records from being shared with justice officials. Certainly, the relative benefits/disadvantages of sharing information with stakeholders who have different points of view and professional agendas require further nuanced analysis.

Myths about how people ‘choose’ to offend, or breach are perpetuated by legal traditions and risk management tools, but mounting evidence demonstrates the flawed reasoning behind criminal justice logics; highlighting for example, how choice and criminal responsibility are affected by factors at both individual and systemic levels (see also Lacey, 2011; Razack, 1998; Sylvestre, 2010). Unavailability of housing, income supports and therapeutic or community resources also affect the conditions and types of dispositions given to offenders, leaving people out in the cold—literally and figuratively.

Next I discuss how practitioner-driven knowledges from various subfields contribute to changing logics and practices of assessing and managing risky individuals in lower criminal courts.

Manoeuvring the courts: Playing the game to change the game

Interviews revealed that virtually all community practitioners provide information about their clients to the court. Disadvantaged and justice-involved individuals are often socially isolated and lack friends or family who can serve as sureties; making this work especially important. Working with court teams to ‘figure out’ what is happening with clients, (un-mandated) practitioners develop plans, and negotiate conditions that might help with recidivism including prohibitions and supports and social or health-related interventions. As they collaborate to design diversion, bail and release plans with various degrees of influence and success, they sometimes insist on assessment, diversion and conditions or therapeutic measures like detox, residential rehabilitation, case management, housing, psychiatric support, anger management, parenting classes or life skills programmes. One case manager explained:

You’re trying to get to work with the legal system, trying to get their charges withdrawn but the whole point of the programme is to identify some of those underlying issues and make their sanctioning more meaningful. We try to address issues to get them out of their offending behaviour, so if that means going into a detox, if it means going to in-house treatment or a parenting programme or to employment-related services or whatever the case may be, then we try to do that too. (C007)

These plans are often built on assessments completed by practitioners who are not legally trained or mandated by the courts or corrections. Assessments and case plans focus on what they think is contributing to their client’s problems with the law (e.g. addiction, unmedicated mental illness). These interpretations frame and inform the legal ‘plan’ and the conditions of release. One court support worker explained:

We’re doing the old bio-psycho-social kind of treatment plan, which is looking at activities of daily living: do you have shoes, do you have socks, do you have financial support, where are you going to stay? Do you have a doctor, have you taken meds, have you been assessed? Do you have a worker? Do you need anger management or some such or abuse counselling? These questions all speak to the likelihood someone will show up at court or breach and re-offend. The idea being that if we’re looking at a sort of rehabilitative plan, there is less of a likelihood that that person’s going to reoffend. The social determinants of health are also those that speak to the criminogenic risk, right? So if I am not financially supported, where am I going to eat? What’s the likelihood that I’m going to try and steal food? (C019)

As Hannah-Moffat and Maurutto (2012) argued, understanding this type of pre-trial governance is important because therapeutic interventions built into judicial interim release are a significant departure from the legal intent behind bail law. Speaking on this issue, one senior manager with over 25 years of experience with bail talked about how she has seen a dramatic shift towards courts wanting to see a specific plan in place to ‘improve’ the person before the courts’ pre-conviction—requiring compliance and increasing potential for breaching.

The criminal justice model is based on traditional legal ideas about choice, moral worth and the value of good character (Lacey, 2011, 2016; Sylvestre, 2010; Werth, 2016). My findings showed that practitioners use discretion to manipulate how they ‘present’ clients, their situation (risks/needs), choices, character and potential, to increase odds of better court outcomes. As previous sections discussed, some eagerly embrace active roles in court, while others are reluctant. Often, the former challenge criminal justice logics that responsibilize poor individuals and have them jump through hoops to prove their worth and responsivity (see also Carlen, 2008).

Even practitioners who say they would never do court-mandated work take calls from and write letters for the court, providing details about clients, programming, schedules, available supports, progress and so on. These statements are often framed as a simple ‘stating of evidence’ (e.g. ‘Joanne is making progress with her self-care and seeing her psychiatrist’) or a commitment by the service provider (e.g. ‘Danielle will be supervised from 9–5 Mon–Fri’). They explain client situations without making promises about outcomes they cannot guarantee. Sometimes they contextualize why clients have continued to ‘fail’, or stayed ‘stuck’, highlighting waitlists for programmes or housing, or barriers to finding employment. For example, one letter to the court stated:

Jenny has maintained contact for 10 months, meeting 33 times and following the plan of action. The plan was to focus on vocational training and employment with the help of a brain injury case manager. Sadly, and despite relentless efforts, sending out countless resumes and completing multiple trainings and a forklift course, she was not successful in obtaining employment. Jenny attended her appointments with the psychiatrist and brought in medication for counting, showing that medication was taken at the proper rate. She has been pleasant, cooperative and amenable to supervision. Jenny always follows through on direction and instructions. (Q013)

This excerpt illustrates the importance of building a narrative that explains not only how clients are being ‘responsible’ and following court orders, but also what circumstances they are trying to overcome.

Some submissions are more aggressive statements intended to defend, vouch for potential or good character, or offer predictions about progress and stability (or vulnerability related to loss of housing, treatment or time in custody). One long-time outreach worker and prison advocate often argues in court, saying:

You should release this person right now—prison is not a good place for them because of the inconsistency around health care and inadequate health care for a person living with HIV or with a compromised immune system—if you let them out, we can assist them in these meaningful ways [...]. (C027)

Such statements can be useful for court workers and defence lawyers who are trying to satisfy crown concerns about flight risk, safety, likelihood of reoffending and potential for reform. As ‘Jidih’ (M020) put it, community practitioners ‘do whatever they can’ to highlight both potential and rehabilitative work underway, stressing the importance of character and reform trajectories in legal decisions making. Of course, responsibilizing measures and the tracking of improvements are especially problematic when people or circumstances are deemed too difficult or impossible to change.

One mental health worker I was shadowing during a release plan (bail hearing) told me that the most important thing he can do is ‘judge shop’ for better outcomes. He made this comment in court between cases; the crown overheard and said: ‘[o]h sure, you need to look for the weak link!’ The worker replied, ‘[n]o, we look for compassion’ (Q010). The most common strategy for dealing with punitive crowns or judges is to find a way to postpone court proceedings, which happens frequently. This is less of an issue for practitioners working with specialized courts, which typically have dedicated legal teams. But even in those spaces, being ‘in-the-know’ about judicial preferences, logics, styles and even moods is important. Having good relationships with legal players at court, community practitioners use their influence ‘under the table’ to negotiate for clients. Once case worker explained:

Often times these things don’t even make it in front of a judge; it’s all done behind-the-scenes. Especially diversion [...] I had a client who committed a pretty serious offence and they wanted to give this time but we got it drawn out for over a period of two years and then when the time came, it was the crown and myself with the client that determined: ‘Okay, you sort of jumped through enough of these hoops and we’re comfortable saying this ends here now.’ (M019)

Community practitioners understand the importance of generating ‘currency’ for court, and develop skills in order to engage with court logics and court actors. Knowing how and when to ‘talk the talk’ is the best way to get access, traction and negotiate successful outcomes for clients. Access and familiarity help community practitioners’ work on projects of (overt and covert) advocacy, reform and resistance, generating important pushback, friction and education for justice professionals.

Practitioners resist conditions that set clients up for failure, often by using medical or sociological arguments; for example, petitioning the court to draft or amend conditions to remove the requirement for abstinence for people with addictions. Interviewees often used this example to show that courts ‘learn’, having become more open to mandating harm reduction programming instead of residential treatment or abstinence. Similarly, courts have ‘learned’ to order ‘contact with a mental health worker’, rather than mandating treatment or medication compliance. This change illustrates the effects of discourse social workers and treatment providers are sharing with court workers and the judiciary, by emphasizing the cyclical trajectory of recovery, and the public health, public safety and economic advantages of harm reduction. In this way, they benefit from working ‘with’ justice, enjoying more professional clout and providing opportunity to change established practices and offer alternatives.

Trusted and connected practitioners working ‘with’ or ‘for’ justice are more likely to report having success arguing that ‘it would be clinically unsound’ to mandate x at this time. Regularly engaging in frontline and committee work with lawyers, police, probation, they build reputations and gain familiarity, which affords them opportunity to advocate for clients (e.g. rushing things or ‘buying time’). One programme manager explained the benefit of this:

it gets tricky at times. They ask questions that are impactful to the client and you don’t want to lie but you pick your words carefully [...] if the client has been using heavily. I may not say that [...] but I may say ‘the client is unwell’ [...] ‘We’re into the end of the week ...’, ‘there are a lot of physical health challenges’, ‘we’re working on getting him back to his doctor next week so he can stabilize’. (C016)

Another manager discussed cultural and gendered factors related to PTSD and emotional display, to help explain her client’s ‘questionable’ presentation of self in court. Yet another highlighted the gendered aspects of trust in therapeutic relationships in order to justify timelines. They explained how embracing clinical language gives them legitimacy and authority, which benefits clients in court. Practitioners even provide academic literature for lawyers, who they say ‘absolutely love it’ (C026).

As described previously, community practitioners provide important knowledge to courts about various aspects of the social, environmental and economic context that affects their clients. In some cases, simply stating facts about previous trauma, poverty and the context in which people are offending is enough to have certain conditions removed or changed. Interviewees stressed the importance of being careful to focus on issues that can be productively managed; because flagging risks that cannot be addressed can set people up for failure. The framing of housing as a dynamic ‘criminogenic’ need for example, can generate opportunities for evaluation, supervision and assessment (see also Quirouette et al., 2016). Ideally, courts acknowledge barriers and mandate the fewest possible number of conditions (even the therapeutic or ‘supportive’). Sobriety, housing and trauma work were all flagged by interviewees as problematic dimensions of court ‘conditioning’, especially for individuals with Acquired Brain Injuries, dementia or mental illness.

Often going over-and-above their formal duties, community practitioners contribute information to the court and advocate for their clients. They manage interventions and consider multiple aspects of risk/need, but ultimately determine case plans based on available resources. This means making difficult choices:

First there’s the risk of putting someone in an abstinence-based recovery home is that they will be homeless and in breach if they use. That’s a risk. On the flip side, if you put them in a slum-landlord setting, where—yeah they can afford the rent but everybody around them is smoking crack or whatever their drug of choice is, then they’re at a risk of relapsing and reoffending and so on and so on. You’ve got to balance all that, all the time.(T005)

This shows the necessity of using a practical, case-by-case approach, rather than standardized sets of practices for risk management. Yet because of resources gaps, even flexible and motivated practitioners struggle to problem-solve approaches with and for their clients.

Conclusion

For a number of reasons, risk logics that support discriminatory and punitive approaches have been imposed on and adopted by community practitioners. Partnerships and arrangements with police, courts and probation have resulted in net widening and downloading of responsibility to overworked non-profit community organizations (see also Mythen et al., 2012; Tomczak, 2017; Trudeau, 2007). However, the strategies described by participants in this study reveal that governance at the community level is not just about agencies being responsibilized and taking on risk management duties. Agencies and community practitioners purposefully (and sometimes begrudgingly) participate in therapeutic work and surveillance for courts, simultaneously working to harness, redirect or deflect the coercive powers of law, while pushing for alternatives to criminalization.

Notwithstanding efforts to standardize service delivery, practitioners use discretion in their application of various forms of risk knowledge. They are not actuarial or managerial ‘robots’—their work is instrumental for both their clients and for the functioning of lower criminal courts. Mandated or not, they work (with/for/against) police, lawyers, court support, corrections and probation staff, and negotiate relationships with legal stakeholders. By clarifying gaps in existing community services and contributing therapeutic logics, they can promote alternative ideas and thereby change actual case outcomes and broader legal practices, such as bail, diversion, conditions of release and community supervision. Contributing to court narratives about how complex needs intersect, community practitioners initiate dialogue about specific cases, touching on a broad range of issues including poverty, access to housing, addiction and recovery, mental health and wellness, trauma, culture, racism and medical conditions related to cognition and choice. They incorporate sociological, social work and medical knowledge to engage with legal stakeholders and thereby change the discourse and legal practices used in lower criminal courts.

My research demonstrates that community practitioners are not just ‘condemning more and understanding less’ (Garland, 2001: 9). However, their work in welfare and health care systems can certainly be punitive, and can take on governing logics and responsibilities from the criminal justice system. Others too have recognized the complexity of the community/criminal justice project and how governance strategies combine care, control and inherent contradictions (e.g. Goddard, 2012; Hannah-Moffat, 2004; O’Malley, 1999). Building on this literature, I argue that community practitioners work in complex ways that cannot be defined solely by partnership, co-option or resistance. They navigate multiple systems and balance competing demands, using discretion to negotiate risks in messy and challenging situations. As theorized by Lipsky (1980)—variation in frontline decision making overrides policy reform efforts and has significant effects on citizens and on systems themselves. Indeed, the work of practitioners willing to ‘wear many hats’ can transform punitive understandings and enactments of risk in criminal courts. After all, ‘contestation between actors with different types and amounts of power drives penal change’ (Goodman et al., 2015: 328). As such, even the smaller ‘routine’ contributions from community practitioners can generate friction over time, driving discursive changes, legal practices and shaping larger shifts in law and punishment.

Interaction and partnership with community practitioners offer criminal courts new ways of knowing defendants (Hannah-Moffat and Maurutto, 2012), and in some cases, practitioners can recast offenders as being risky, or at-risk, worthy and capable of salvation or improvement. Conversely, contributions and demands from practitioners can also be ignored or dismissed. Community practitioners cannot always successfully intervene on behalf of their disadvantaged clients or counter the destructive and demoralizing effects of criminalization, even in non-adversarial, non-conviction, non-confinement situations. Most strikingly and consistently, respondents spoke of struggling to effect change regarding poor housing options, systemic racism, as well as pressures to report, disclose information and compete for funding. In practical terms, this means that rather than addressing criminogenic needs (e.g. by providing housing, employment or treatment), practitioners often have to explain to police, bail and probation, lawyers and judges why a person before the courts might not be able to comply with conditions or qualify for housing, treatment or service. At times, these explanations successfully justify legal decisions about amending community conditions via bail modification or through specialized programmes.

Researchers and policymakers alike can benefit from understanding how practitioners are able or unable to influence and shape community release orders and interventions in lower criminal courts. Aware of the risks their clients face and represent, practitioners contribute logics that may conflict with legal assumptions about rational choice, and can help develop intervention plans and best practices. These interdisciplinary arrangements and often fluid practices are particularly important because of the current crisis of pre-trial detention, and the growing popularity of therapeutic justice, diversion and alternative measures that involve community supervision in Canada, the United States and internationally. Examining how community practitioners work with, for and against the grain in lower criminal courts shows how they cultivate the potential to ‘flip logics’ and draw attention to structural risk—responsibilizing the system and pushing for new definitions of legal responsibility and accountability.

Funding

This research received funding from the Fondation Baxter et Alma Ricard and the Social Sciences and Humanities Research Council of Canada

Notes

1. Funding structures are mixed across 24 agencies, with multiple sources of support changing annually. With such ‘mixed social economies’, ‘there is not one public/private split but many, depending on whether we are discussing financing, service delivery, or inspection and regulation’ (Maurutto, 2003; Valverde, 1995: 54).

2. Legal aid is only available for accused facing ‘jail time’ for each individual charge, leaving many ‘chronic’ low-level offenders without representation. Small charges can lead to multiple bail orders, conditional sentences and probation orders where breaches are likely to trigger jail time.

3. Breaches of probation account for 10 per cent of all criminal code offences, and if all administrations of justice offences are included, this number jumps to 35 per cent (Boyce, 2013).

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