Extending Carceral Control Pre-Conviction: the Reception, Resistance, and Repercussions of Being Legally Responsible for People Accused of a Crime

Rachel Brooke Schumann

A thesis submitted in conformity with the requirements for the degree of Doctor of Philosophy Department of Sociology University of Toronto

Rachel B. Schumann

Doctor of Philosophy

Department of Sociology University of Toronto

2020 Abstract In Canada and the United States, the control, supervision, and rehabilitation of criminalized people often falls on the shoulders of non-state agents and organizations. Surety bail releases are a seemingly clear embodiment of this trend as the courts call upon relatives, friends, and employers to supervise the pre-conviction activity of people accused of a crime. The resulting diffusion of responsibility is said to increase the penal state’s power and control over criminal justice involved individuals while minimizing reputational risks. However, by analyzing data from a year’s worth of bail court observations from a mid-sized jurisdiction in Ontario and interviews with sureties, I find that how friends and family assume the role of surety varies considerably and regularly diverges from court expectations. Because sureties are not legal professionals, their understanding of and ability to enforce court-ordered conditions and report bail violations is primarily shaped not by court instructions and legal mandates but by their ever- changing relationship with the accused, existing biases towards the law, and extenuating life circumstances. In this way, carceral control is not just assumed by sureties but also resisted, ignored, and subsequently transformed in the context of their everyday lives. Under surety bail releases, the governance of accused individuals therefore represents a patchwork of different and

ii sometimes competing modalities that are stitched together by both state representatives and ordinary citizens. Yet, for accuseds and their sureties, this involvement can come at a cost. While surety releases have the potential to improve the accused’s relationship with their friends and family and increase their surety’s willingness to continue their support, the rules of the court are like an omnipresent force that continually threaten to disrupt the ties that bind. Indeed, the constant pressure of having to enforce court-ordered conditions subjects sureties to a more punitive experience, demonstrating punishment drift in action. The results of this study inform a series of recommendations geared towards offsetting the pains of pre-conviction for accused and their loved ones.

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Acknowledgments

This project benefited from the thoughtful participation, insight, and support of many people.

First and foremost, I want to thank all the people I met with, spoke to, and interviewed for this project. Each and every one of you showed me such kindness and generosity even in the face of adversity. This project would not have been possible without your candid and courageous participation. It is you that I dedicate this research to.

Since my dissertation highlights the value of having a supportive social network, it’s only fitting that I also acknowledge my advisors, colleagues, friends and family who contributed to the success of this project.

Throughout my degree, I was lucky to have an extremely encouraging committee. Candace Kruttschnitt, I couldn’t have asked for a more supportive advisor. Your comments and feedback always made my dissertation stronger and it wouldn’t have been the same without your guidance. I will continue to look up to you as a marker for what a strong and fierce female academic looks like. You are a literal force to be reckoned with!

Thank you Philip Goodman. I always valued your contributions to this project. But even more, I appreciated your kind mentorship, which helped me overcome self-limiting beliefs. Your constant encouragement allowed me to produce a quality piece of scholarship and I truly couldn’t have done it with out you.

My project also benefitted tremendously from having Ronit Dinovitzer on my committee. Ronit, you helped elevate my project by always providing thorough and thought-provoking feedback. You constantly pushed me to think about my project differently, which helped the project grow in new ways. I truly appreciated all your mentorship during this time.

I send my deepest gratitude to both Danielle Rudes and Jooyoung Lee who acted as the external and internal examiners for my oral defense. Danielle, the level of care and engagement you showed surpassed my wildest expectations. Your feedback helped me see my project in a new light, which will assist me in publication. Jooyoung, despite being my internal examiner, you influenced this project very early on. Your approach to research is so inspiring and it helped me gain the confidence needed to pursue the type of project I did.

To all my amazingly brilliant friends and colleagues (you know who you are) - cheers!! I couldn’t be more lucky to have such strong people in my life; it is your friendship that helped push me through.

I am forever grateful to my family, who instilled in me the value of learning at a young age. Your constant love shone brightly and helped guide my way to success.

And last, but certainly not least, Mat and Frankie. I love you both deeply. Mat, I couldn’t ask for a more caring and supportive partner. Your vision and tenacity for life motivates me daily.

Table of Contents

Acknowledgments (if any) ...... iv

Table of Contents ...... v

List of Tables ...... ix

List of Appendices ...... x

Chapter 1 Surety Bail Releases: By and Beyond the Books ...... 1

1.1 Sureties By the Books ...... 3

1.2 Sureties Beyond the Book ...... 5

1.3 Study Design ...... 7

1.4 Carceral Devolution: The Home as Prison ...... 8

1.5 Governing Through Crime and the Responsibilization of Friends and Family ...... 11

1.6 Collateral Consequences: the Good, the Bad and the In-between ...... 13

1.7 Chapter Overviews ...... 15

Chapter 2 The Cross-Functionality of the Courthouse as a Research Site: Participant Recruitment, Data Collection, and Analysis ...... 19

An Exercise in Reflexivity: Why this Topic? ...... 19

2.1 Recruitment and the Initial Sample ...... 21

2.2 Rapport Building, the “Go-Along,” and the Initial Interview ...... 26

2.3 The Sequential Interviews ...... 27

2.4 Supplemental Data ...... 31

2.5 Analytic Strategy ...... 32

2.5.1 Chapter 3 ...... 32

2.5.2 Chapters 4 and 5 ...... 32

2.5.3 Chapter 6 ...... 33

2.6 Limitations of this Analytic Approach ...... 35

2.7 Conclusion ...... 37

Chapter 3 “I want to get him back on track”: the Convergence of Reform and Control Modalities in Surety-Involved Bail Decisions ...... 38

Introduction ...... 38

3.1 Widening the Web of Control: Downloading Penal Responsibilities to Non-legal Professionals ...... 40

3.2 Complicating the Web of Control: Assuming the Power to Punish ...... 42

3.3 Findings ...... 44

3.3.1 Reasons for Becoming a Surety ...... 44

3.3.2 Influence on Court Outcomes ...... 53

3.4 Discussion ...... 56

3.5 Conclusion ...... 60

Chapter 4 Assuming and Resisting the Role of Surety: Control vs. Care-Oriented Enforcement Strategies ...... 62

Introduction ...... 62

4.1 Court Expectations and the Legal Role of Sureties ...... 63

4.2 Controlling Crime through Community Supervision and the Secondary Prisonization of Sureties ...... 65

4.3 Surety Releases as an Assemblage of Control ...... 68

4.4 Impacting the Lived Experience of Bail ...... 69

4.5 Findings ...... 70

4.5.1 Methods of Enforcement ...... 70

4.5.2 Challenges to Enforcement ...... 78

4.6 Discussion ...... 83

4.7 Conclusion ...... 88

Chapter 5 “He’s in jail now and I don’t feel bad”: Analyzing Sureties’ Decisions to Report their Loved One to the Police ...... 89

Introduction ...... 89

5.1 Failing to Comply ...... 90

5.2 The Pull of Bail ...... 91

5.3 Reporting the Accused: a Rational Choice? ...... 92

5.4 Findings ...... 95

5.4.1 Breaking Bail: Defining and Reporting Bail Breaches ...... 95

5.5 Discussion ...... 105

5.6 Conclusion ...... 110

Chapter 6 The Bail Bond: Defining Surety-Accused Relationship Adaptations Post Bail Release ...... 111

Introduction ...... 111

6.1 Friends, Family, and the Penal State ...... 113

6.2 Family and Peer Support: a Protective Force ...... 114

6.3 The Impact of Criminal Justice Interventions on Relationship Ties ...... 115

6.4 Findings ...... 119

6.4.1 Damaging – “She’s on Her Own” ...... 120

6.4.2 Volatile – “We don’t want to cut him off but…” ...... 127

6.4.3 Constructive – “Now he can take time to fix himself” ...... 131

6.5 Discussion ...... 135

6.6 Conclusion ...... 140

Chapter 7 “Punishment Drift” and the Attribution of Blame: the Hidden Costs of Being a Surety ...... 142

Introduction ...... 142

7.1 Experiencing “Punishment Drift” ...... 144

7.1.1 Financial Burden ...... 145

7.1.2 Emotional Burden ...... 146

7.1.3 Social Burden ...... 146

7.2 The Responsibility Drift ...... 148

7.3 Limiting Punishment and Responsibility Drift ...... 149 vii

7.3.1 Obligation to Communicate ...... 150

7.3.2 Obligation to Improve Conditions ...... 150

7.3.3 Obligation to Search for Knowledge ...... 151

7.3.4 Attitudinal Obligations ...... 152

7.3.5 Obligations to Compensate ...... 152

7.4 Confidence in the Administration of Justice: a Mixed Bag ...... 153

7.5 Final Remarks ...... 154

References ...... 155

Appendices ...... 175

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List of Tables

Table 1: Initial Sample Demographics ...... 25

Table 2: Follow-Up Sample Demographics ...... 29

Table 3: Primary Effects Descriptors ...... 120

List of Appendices

Appendix A: Initial Interview Guide ...... 175

Appendix B: Researcher Identified Demographic Information on Refusals ...... 176

Appendix C: Additional Demographic Information on Study Sample ...... 178

Appendix D: Follow-Up Interview Guide ...... 181

Chapter 1 Surety Bail Releases: By and Beyond the Books

After a short recess, Justice Howard1 calls court back into session to announce whether he is going to grant the accused bail and if so, on what conditions. The accused in this case is a white man in his early 20s named Ryan. Ryan is charged with assault, uttering threats, possession with the purpose, and failing to comply in addition to several other outstanding charges. He sits in the prisoner box with a police officer beside him. In the body of the court, I am accompanied by Ryan’s father, Frank, a white man who looks to be in his mid 50s. Frank is here today to be his son’s surety. Prior to the recess, Frank took the witness stand and told the court that he waited a month before agreeing to be Ryan’s surety. While being questioned by both the Crown and defense, Frank disclosed that he thinks his son “should be ashamed” of his behaviour and that he needs to “straighten up and go back to school.” As a father, Frank revealed that all he wants is for Ryan to be a “good boy like his brothers.” In order for his son to be a “good boy,” Frank proposed that Ryan undergo regular drug testing and be placed on house arrest. The Crown while recognizing Frank’s “good intentions” as a father ultimately contests Ryan’s release because he had committed the alleged crimes while living with Frank. According to the Crown, Frank’s inability to prevent Ryan from engaging in crime “demonstrates that he doesn’t have a history of control over his son,” making him an unsuitable surety.

Justice Howard is a seemingly jovial white man likely in his early to mid 60s. He is one of several justices of the peace (JPs) that preside over bail bearings in this particular court house. He starts his ruling by reading over the allegations and the Crown’s primary concerns regarding a possible release. Despite his reluctance to release Ryan from custody, Justice Howard explains that he has considerably more trust than the Crown that Frank can and will adequately supervise Ryan while he is out in the community. When justifying his decision to grant Ryan’s release from custody, Justice Howard placates concerns by reminding the court that “the surety has the ultimate control of the pre-trial activity of the accused.” He then issues seven release conditions, including a residential condition, a nightly curfew from 10pm-6am as well as several restrictions limiting Ryan’s mobility, communication, and use of the internet. While he does not

1 Pseudonym

1 2 implement the no drugs condition that Frank requested, Justice Howard does order Ryan to “be amenable to the routine and discipline of your father’s residence.” To this condition Justice Howard adds that “the power of a surety is to withdraw or report if the accused doesn’t comply with their or the court’s rules.” With this, Justice Howard makes clear that in addition to supervising the accused, sureties, like Frank, also have the authority to implement their own conditions as they see fit. To ensure Ryan understands this new dynamic, Justice Howard addresses him directly and says “failure to abide by your conditions and/or follow the routine and discipline of your father’s home may result in financial forfeiture, new charges, and additional jail time.”

Over the past several years, I have observed and analyzed hundreds of bail hearings with outcomes very similar to the one described above. Like Ryan, the vast majority of accused who have a bail hearing are released into the community to await the resolution of their criminal charges.2 Consistent with Ryan’s experience, many accused who receive bail are also expected to have a surety in order to be released. Sureties, as demonstrated above, are ordinary citizens that are known to the accused and provide an assurance to the court that the accused will 1) attend court, 2) not reoffend or breach their conditions, and 3) not interfere with the administration of justice (Trotter 2010). The lack of official court data makes it difficult to know the exact number of cases involving sureties though there is widespread agreement among scholars and legal professionals that they are used more than the law requires (CCLA 2014; JHSO 2013; Lauzon 2016; Myers 2009, 2018; R. v. Antic 2017; R. v. Tunney 2018; Webster et al 2009). The heavy reliance on sureties can therefore be attributed, in part, to a growing trend identified elsewhere in Canadian and American criminal justice policy that sees the control, supervision, and rehabilitation of criminalized people being offloaded onto non-state agencies and organizations. This shifting of penal power has resulted in scholarly conversations about the role these agents play in mediating the relationship between the penal state and criminalized people more broadly.

2 At first read, this seems to contradict the high remand rates that exist across the province of Ontario. However, data on remand admissions show that most accused are there because they are waiting for a bail hearing or have been denied a hearing in order to expedite a plea agreement (Malakieh 2019). Fewer accused are held in pre-trial custody because they have been denied bail (Ontario Court of Justice 2018).

Surety releases push this trend one step further by drafting those closest to the accused to be civilian jailers. Under surety releases, the management of accused individuals is often shouldered not by legal professionals or members of the criminal justice system, but by accuseds’ employers, significant others, relatives, and as is most common and in Ryan’s case, their parents. Bail practices in Ontario therefore provide an empirically rich opportunity to explore these shifts in responsibility as they are experienced by accused individuals and their loved ones. As observed during Ryan’s bail hearing, sureties are expected to be representatives of a broader penal agenda that emphasizes surveillance and control. Yet, by focusing on the lived experiences of sureties, the current study lends important theoretical insight into the ways penal control is not just assumed by non-state actors but also how it is resisted, and ultimately transformed in the context of everyday life and intimate relationships. The results of this study also add to a growing body of research dedicated to documenting the ‘collateral’ or ‘repercussive’ effects of the expanding penal state on the families and communities of criminalized individuals. Despite suffering from a reduction in their emotional, physical and financial well-being as a result of criminal justice interventions (Hagan and Dinovitzer 1999; Turanovic et al 2012; Wakefield, Lee and Wildeman 2016; Wildeman et al 2012), friends and families remain an important source of support and stability for prisoners and low level offenders (Boman and Mowen 2017; Brunton- Smith and McCarthy 107; Christian and Kennedy 2011; Comfort et al 2016). However, as the state shifts responsibility for crime control onto ordinary citizens, like in the case of sureties, it becomes increasingly important to understand how these shifts might also impact the protective factor of support networks in the lives of people in conflict with the law.

1.1 Sureties By the Books

Surety releases are one of five types of release outlined in Sec. 515(2) of the Criminal Code. Sec. 515(2) resembles a ladder with each form of release constituting a higher and more restrictive rung or step.3 Under this section of the criminal code, judges and justices of the peace (JPs) are encouraged to release accused on their own recognizance and with the fewest number of conditions necessary to mitigate any pre-trial concerns. A move up the ladder must therefore be

3 There are a number of release options outlined under sec. 515(2) of the Criminal Code. for JPs to use. They can release an accused on an undertaking, their own recognizance, with a surety, with a monetary deposit, or with both a surety and monetary deposit.

4 justified in light of why a lesser form of release is inappropriate. Based on Sec. 515(2), a release with a surety represents a higher rung on the ladder as it involves an added layer of surveillance. There are two types of surety releases: residential and non-residential. Most often (and in nearly all the cases I examine except two) the accused is released with a residential surety with whom they are ordered to live with. This is likely the more popular type of surety release as it makes direct observation of the accused easier.

One of the primary legal responsibilities of a surety is to ensure an accused complies with the conditions of their release. Though now somewhat outdated, the most recently available data documenting the number of conditions accused receive suggests that in addition to having a surety the majority are also expected to abide by at least five conditions (Myers 2009). While sec. 515(4) of the Criminal Code outlines a number of enumerated release conditions judges and JPs can give to an accused such as forfeiting a passport, it also provides judges and JPs with the discretion to impose added conditions not written in the criminal code such as curfews or attending counselling. Typically, these conditions are considered more intrusive than enumerated conditions because they can cause “significant deprivation of liberty for the accused” as well as impose added pressure on the surety to ensure the accused does not breach (Trotter 2010; 6-35).

By law, sureties must also report the accused to the police for any illegal and/or non-compliant behaviour. To keep sureties accountable, the courts make them pledge to forfeit an amount of money (usually between $1000-2000) if the accused misses court, reoffends, or breaches. This “promise to pay” is supposed to provide the necessary impetus for friends and families to render non-complying individuals to the police in order to avoid financial forfeiture.4 To assist sureties in preventing bail breaches, the courts authorize them to impose their own conditions as part of the “routine and discipline of the household.” These conditions are up to the surety’s discretion and can include such conditions like having to take out the trash, prepare dinner, and follow a non-court ordered curfew. If the accused disobeys these demands, the surety can either revoke their position or breach the accused for failing to comply. In both scenarios, the accused is placed back in custody. If the surety revokes, the accused is only in jail until a new surety is found. If

4 It is unclear how frequently the courts pursue this line of action when an accused breaches his/her bail due to a lack of publically available data.

5 the surety reports the accused to the police, the accused can be charged for breaching and put in jail to await a bail hearing. It is for these reasons that members of the court commonly refer to sureties as civilian jailers.

1.2 Sureties Beyond the Book

Being released from custody with a surety helps to safeguard accused from being arbitrarily detained prior to conviction (CCLA 2014; Doob and Webster 2012; JHSO 2013; Myers 2009). However, research shows that more people require a surety than is necessary by law, questioning the effectiveness of constitutional protections like the presumption of innocence and right to reasonable bail. Specifically, Myers (2009) found that the accused needed to have a surety in order to be released in 63 to 100 percent of contested release cases (Myers, 2009). This number remained high in consent to release situations, where it was found that both the Crown and JP required the accused to have a surety in roughly 60 percent of cases (Myers, 2009).5 When the accused did not have a surety present, Myers (2009) discovered that defense attorneys consistently adjourned the case until a surety could be located.

The overuse of sureties in Ontario seemingly challenges the legal framework of bail, which could mean that constitutional rights and freedoms that protect legally innocent individuals from being presumed guilty and subjected to pre-conviction punishment are being overlooked (Myers 2017; Roach 2008). According to section 11(d) of the Charter of Rights and Freedoms, any person charged with an offense has the right to be presumed innocent until proven guilty by a fair and impartial court (Doob and Webster 2012). This right prevents the state from imposing punishment on the accused until a guilty conviction has been established. Further, section 11(e) of the Charter states that any person charged with an offense has the right not to be denied reasonable bail without just cause. A common misconception is that this right only protects accused individuals from being unreasonably detained, however, in R. v. Pearson (1992), the Supreme Court clarified that this contained two distinct parts: that bail be reasonable and that it

5 In Ontario, there are two main bail courts: contested court and consent to release court. A contested hearing occurs when the Crown contests the release of an accused (presumably those who pose a greater risk) whereas a consent to release hearing occurs when the Crown has already agreed to an accused’s release. Myers conducted her analysis on 4085 bail hearings across Ontario.

6 not be denied without just cause. When taken together, sections 11(d) and (e) of the Charter suggest that bail be as least restrictive as possible to avoid imposing punishment on the legally innocent.

In spite of these protections, many accused are subjected to surety releases without proper legal justification (CCLA 2014; JHSO 2013). As discussed above, surety releases constitute one of the most onerous forms of release because they ostensibly expose accused to higher levels of surveillance (Trotter 2010). While it is unclear how surety releases contribute to an accused’s compliance, some suggest that surety releases likely increase the likelihood of breaches. The simultaneous rise in non-compliance charges and surety releases suggests there may be some relationship between having a surety and bail violations. In particular, the rate at which female adults were charged with failing to comply tripled between 1986 and 2005, increasing from 33 females per 100 000 population to 103 females per 100 000 population (Kong and Aucoin 2008). Non-compliance rates for men also saw an eighty-two percent increase during this time (Ibid 2008). This can have several repercussions when it comes to bail, as a failure to comply charge can initiate a reverse onus situation and make future bail difficult to obtain.6 Thus, it is possible that the increase in failure to comply charges may be partly explained by the rise in the number of people released on bail under stricter supervision. Indeed, the legal consequences that result from having a surety revoke or report, such as loss of money, arrest, and even detention, are said to blur the boundaries between crime prevention and punishment and violate a person’s constitutionally protected rights and freedoms (Doob and Webster 2012; Trotter 2010).

There is some reason to believe, however, that the court culture emphasizing the use of sureties is subsiding. Against the backdrop of growing concern over the use of sureties and excessive remand populations, both the Supreme (R. v. Antic 2017) and Ontario Superior (R. v. Tunney 2018) courts criticized a normative culture that prioritizes risk management over legal principles outlined in the Criminal Code. According to Justice Di Luca “it is clear that the culture of risk aversion must be tempered by the constitutional principles that animate the right to reasonable

6 According to sec. 515(6) of the Criminal Code., this means the onus is on the accused to show cause why s/he should not be detained if s/he has already failed to comply with an earlier order. Not only does this minimize an accused’s chances of getting bail, it can also have negative effects on trial outcomes (Kellough and Wortley 2002; McLellan, 2011; Myers, 2009; Trotter, 2010).

7 bail” (R. v. Tunney 2018 para 29). The rulings acted as stern reminders that JPs, Crowns, and defense lawyers must make a concerted effort to abide by the ladder principle outlined in Sec515(2) of the Criminal Code and only request a surety when there are adequate legal grounds for such a release. To date, it is unclear whether these decisions have resulted in a decline in surety releases. Using data from three jurisdictions, Schumann and Yule (unpublished) indicate that although there has been a decline in surety releases following the decisions in R. v. Antic (2017) and R. v. Tunney (2018), a large number of accused (roughly one-third) continue to need a surety before they are granted bail. Overall, the research on bail in Ontario has been helpful in identifying the adverse legal consequences that arise from surety bail releases. Yet, two important gaps remain in understanding sureties in practice: 1) to what extent do sureties enforce conditions and subsequently report accused for breaching?; and 2) what are the social consequences of having a loved one assume the role of civilian jailer?

1.3 Study Design

Expanding on current trends, this study explores how criminal courts rely on friends and family to manage the “pre-trial activity” of criminally suspect individuals in the community. To date, very little is known about how friends and family assume the role of a surety and the toll it takes on their relationship with the accused. Most research on the diffusion of penal control focuses on what criminal justice policy and/or decisions say rather than what non-state agents do. Using a combination of ethnographic ‘go alongs,’ court observations, and sequential interviewing allowed me to ask questions about how friends and family maintained their loved one’s compliance to court conditions as well as the costs and possible benefits of being surety. Specifically, this project centers on the following research questions:

• why do friends and family agree to be surety given the financial and legal consequences?;

• how do sureties influence court proceedings?;

• to what extent do friends and family assume the role of surety?;

• how does this role impact the relationship between the surety and the accused?;

• what are the repercussive effects of being surety?

To analyze this study’s findings, I use and expand on three interrelated concepts and theories: 1) carceral devolution; 2) governing through crime; and 3) collateral consequences. Surety releases,

8 though seemingly characteristic of these trends, also lend additional nuance into the ways shifting penal responsibility is experienced and subsequently modified by those doing the work.

1.4 Carceral Devolution: The Home as Prison

Compared to custody, releasing accused individuals into the care and control of a surety is presumably a more effective way to minimize remand rates and ease overcrowding in jails while also moderating the state’s involvement in the lives of accused individuals. Yet, broader research findings on the expansion of penal boundaries seems to question whether surety releases are truly a function of less penal control. Indeed, Miller (2014) argues that government agencies and representatives expand the control (and punishment) of criminalized people by offloading carceral authority to community based actors and organizations. The ensuing “carceral devolution” (Miller 2014) results in the penal state becoming more deeply embedded within the lives of individuals convicted of a crime, particularly poor people of colour. Others scholars such as Gottschalk (2015) and Kaufman, Kaiser, and Rumpf (2018) also draw attention to the various ways penal control reaches beyond confinement. Gottschalk (2015: 256), for example, shows how people with a felony conviction are trapped in a “web of controls that stretches far beyond the prison gate” due to expanding parole requirements and stricter immigration detention policies. Building on this, Kaufman et al (2018: 471) provide a definition of penal control that distinguishes it from punishment. For them, penal control is less about expressive forms of punishment and more about “the way the state or more autonomous professional agents direct individuals who have been defined as criminal or problematic.” As Kaufman and others urge, to fully understand the extent of penal control in the lives of criminalized individuals requires moving beyond the institution itself.

Yet, much of the research on the carceral devolution continues to conceptualize penal power as operating from the top down (Beckett and Western 2001; Schram and Silverman 2012; Soss et al 2008; Wacquant 2009, 2012). Even though non-state actors are deeply involved in accomplishing criminal justice objectives, they are all too often relegated to a supporting role. Contrarily, non-profit organizations and non-state actors often carry out their carceral duties in ways that can differ from state expectations (Hannah-Moffat and Maurutto 2012; Kaufman 2018). As Goodman, Page, and Phelps (2017) remind us, penal policies, legal demands, and state objectives are filtered through those expected to do most of the heavy lifting, resulting in “on the

9 ground” struggles that shape penal outcomes. There is also a tendency when speaking about the carceral devolution to focus on the control-work of community organizations or “autonomous professional agents” like parole and probation officers. While the home is often identified as a site of control, less attention has been granted to understanding how friends and family are included in and contribute to the practices of carceral devolution.

Focusing on surety releases therefore allows us to examine the involvement of ordinary citizens in the control of people charged but not yet convicted of a crime. Prior research attributes surety releases to the penal state’s desire to offload their responsibility for the care and control of accused individuals (Myers 2009; Webster et al 2009) in order to minimize reputational risk. In other words, holding individual members of the community accountable for the actions of the accused lessens the court’s blame should the accused reoffend while on bail (Myers 2009). The shifting of responsibility of accused from institutional actors like police, correctional officers, and bail supervisors to an accused’s friends and family raises the following questions: How do friends and family contribute to the penal control of accused individuals? How is control defined and subsequently enforced by sureties who have minimal criminal justice experience? How is this role of ‘controller’ experienced by sureties in the community? And how does it affect their relationship with the accused?

Generally, offloading penal responsibility to community organizations and professionals subjects criminalized individuals to further control. In much the same way, sureties releases also allow for the increased management of accused individuals by exposing them to higher levels of supervision in their daily lives. The courts grant sureties legal authority to control the everyday activities and behaviours of the accused. In many ways, this entrenches the penal reach even further into the lives of criminally suspect individuals as their actions are under scrutiny 24-7. The courts expect sureties to operate like civilian jailers who take precautionary steps like monitoring the accused’s cellphone, locking up prescription drugs and alcohol, and installing security cameras. Doing so transitions the home7 into a prison-like environment. The courts even

7 In legal doctrine, the home represents a sacred space where our most intimate and private activities take place. Using place as an analytical tool to evaluate the reasonableness of a person’s expectation to privacy (Weatherall v. Canada 1993), we are afforded the highest degree of privacy within our homes (R. v. Silveira 1995) and the least

10 go so far as suggesting that to prevent an accused from fleeing, sureties must inhibit the accused’s access to separate entrances, windows, and car keys. Friends and family find this aspect of being surety particularly stressful because despite their best efforts, many feel like they are ill-equipped to prevent an accused who has little regard for their conditions from breaching. During my time in estreat court, several sureties recounted the difficulties of “prisonizing” their homes in the ways the court expected.

While accused are not yet convicted of an offense at the time of their release, having a criminal charge is enough to justify heightened control. Regardless of constitutional protections, accused individuals are often presumed guilty by members of the court (Wyant 2016). Crowns, like the one described at the start of this chapter, commonly imply guilt during their submissions. In the example provided above, the Crown criticized the proposed surety for failing to prevent the accused’s (alleged) criminal behaviour, which treats the original charge as a conviction. Add to this the characteristics commonly associated with higher levels of risk, such as unemployment, alcoholism, and a lengthy criminal history, and it becomes increasingly difficult for accused to be released on their own recognizance. Rather than address underlying mental health needs, addictions, homelessness/insecure housing, and unemployment, surety releases are intended to simply contain risk. This focus on risk containment places the blame solely on the surety (and the accused) if they fail to maintain compliant behaviour.

How surety releases operate to control accused individuals remains unknown. The present study addresses this gap in the literature in several ways. Prior research argues that surety releases increase the court’s power over accused individuals by entering into their homes and private lives via the supervision of the surety (Myers 2019; Schumann 2018). The financial pressures placed on sureties to ensure compliance transforms them into de facto prison guards or civilian jailers. At the same time, however, there are reasons to suspect that how sureties assume their role diverges from court expectations. The legal demands to enforce conditions and report non- compliant and criminal behaviour likely oppose a surety’s role as the accused’s friend or family member. One duty counsel explained, “I always tell my client’s surety that you’re not the parent

within prison. However, surety releases provide the state with the opportunity to transform the home into a prison, minimizing an accused’s access to privacy commonly afforded by law.

11 anymore, you made a promise to the court.” Promise or not, sureties have their own set of values, beliefs, and objectives that inform how they perceive their legal obligations. Beyond coming forward to help secure an accused’s release, sureties agree to the role for a number of reasons, like helping the accused get sober. These objectives subsequently shape how they administer punishment and control the everyday actions of the accused. Depicting surety releases as too onerous or too lenient obscures the nuanced ways that the power to control accused individuals gets passed between the courts and the surety. By giving sureties the power to render an accused, they become responsible for structuring new, unregulated forms of penal control that would otherwise go unnoticed by the criminal justice system. This study explores the various pathways of control that materialize as a result of a surety release.

1.5 Governing Through Crime and the Responsibilization of Friends and Family

The carceral devolution enables the state to control more than just crime. As Simon (2007: 5) argues, the offloading of penal responsibility presents “new opportunities for governance” whereby institutions no longer govern crime but govern through crime. The effects of this process are not limited to government agencies or criminal justice officials, but also include “those in positions of ‘responsibility’ for others, including high school principals, corporate executives, and parents” (Simon 2007: 21). He argues that within this atmosphere of governing through crime, families are now responsible for preventing potentially criminal misconduct. While the state appears to have relinquished control of crime to the private sphere, they have creatively made new policies that compel parents to “invest heavily in disciplinary technologies and knowledge” (Ibid 201). This trend has been identified in other areas of Canada’s criminal justice system like specialized bail courts, for example, which now rely heavily on community partners to govern released offenders (Hannah-Moffat and Maurutto 2012).

Responsibilizing non-state organizations and in this case, ordinary citizens, subjects them to strict institutional rules that shape how they conduct their lives (Simon 2007). Policies that exclude people related to those with a felony conviction from public housing entices family members to prevent crime. Consequences like these give criminal law a transcendent quality and incentivize parents to raise law abiding children. Failure to do so can, in some extreme cases, result in parents being held criminally responsible for their children’s conduct. In one such case,

12 an Indiana mother was at risk of being charged with one count of dangerous control of a child, five counts of neglecting a dependent, and one count of criminal recklessness after her son brought a gun to school and committed suicide (Padilla 2019). Although she notified authorities about her son’s intentions, state prosecutors blamed her for failing to take precautionary steps that would have prevented his actions. Examples like these help to explain how and why friends and family of accused are similarly responsibilized when they become surety. To be ‘successful’ and avoid being estreated, friends and family must assume the role of a civilian jailer who is willing and able to take preventative measures to ensure the accused does not abscond, breach, or reoffend. In taking on this role, crime prevention becomes the defining feature of the accused- surety relationship.

According to Comfort (2008) families of criminalized people experience what she terms “secondary prisonization.” Through her ethnographic observations of San Quentin’s visitation room, Comfort (2008) finds that women are regularly subjected to similar forms of institutional scrutiny and rules as their male partners. While most of Comfort’s (2008) study describes the various ways the women’s lives change as they navigate the rules of the prison, she briefly explores how women are prisonized into secondary or surrogate jailers. By visiting their men in prison, women both resisted and assisted correctional authorities “with supervising, restraining, and punishing their partners” (Comfort 2008: 182). By taking advantage of their partner’s position on the inside, women regained control over their relationships and sometimes used this control to shape and manage their lover’s behaviour. Similar to the wives and girlfriends of male offenders, friends and family of accused individuals are expected to become “characteristic of the penal community” (Clemmer 1940: 84) through their role as civilian jailer. Sureties are forced to adapt to the rules and norms of the court or risk financial penalty. The degree to which sureties experience secondary prisonization, however, depends on how they interpret and subsequently carry out their role of enforcing court ordered conditions and reporting breaches. In this way, sureties are more than just characteristic of the penal community as they introduce important modalities of control that go beyond the legal mandate of bail.

1.6 Collateral Consequences: the Good, the Bad and the In- between

In many respects, surety releases can be described as a hidden sentence. Kaiser (2016: 127) defines hidden sentences as “all punishments that the law imposes as a direct result of criminal status but not as part of a formally recognized, judge-imposed sentence.” These include the “largely unrecognized and unconsidered deprivation of rights and privileges to which the law subjects criminal offenders,” including those that “begin prior to conviction, upon arrest, or pre- trial detention” (Kaiser 2016: 127). What makes hidden sentences so problematic, according to Kaiser, is the that they often go unnoticed by legal professionals, offenders, and the public alike. It is this lack of transparency that diminishes constitutional protections for both offenders and victims as well as illegitimates any purpose of punishment that these sentences serve (Kaiser 2016). It is in this light that the current project explores the little known and often hidden world of surety releases.

From a legal perspective, being released on bail with a surety is often viewed as being more reasonable and less invasive compared to being held in jail. Granting accused bail means they can deal with the resolution of their case in the community, where they can go about their days as normally as possible. As one lawyer remarked “it’s [being released with a surety] better than jail, it’s always safer to get them out.” While being released into the community certainly offsets the pains of imprisonment, this comparison obscures the challenges experienced as a result of being on bail. If we use Kaiser’s (2016) definition, surety releases are a quintessential hidden sentence. Not only is there very little empirical evidence about these types of releases (aside from court observations detailing how frequently they are used), optically they can appear more lenient because court-orders are being enforced by the accused’s friends and family. However, release conditions and expectations make this type of release nearly indistinguishable from other forms of post-conviction punishment such as parole and probation, where there are serious legal consequences that develop from not following the conditions. Yet unlike probation or parole officers, sureties are held to a much higher standard of accountability when the accused fails to comply. The possibility of estreatment places sureties in a considerably more vulnerable position as documented in the forthcoming chapters. The combined stress of enforcing conditions and not having professional experience as an officer of the law can have several negative implications such as withdrawal from social activities, missed employment, financial strain, and declines in

14 other personal relationships. The embarrassment of having a loved one in trouble with the law also prevented several sureties from disclosing their situation to others or asking for help, making it feel like they too were being arbitrarily punished.

By positioning this study within a broader framework of governance and control, I also assess whether shifts from formal to informal modes of surveillance alter the surety’s relationship with the accused. According to R v. Horvath (2009), the success of bail often hinges on how well sureties follow through on their court-mandated role. While the life course literature suggests that familial bonds provide the best level of support for adult offenders trying to desist from crime (Christian 2005), this does not translate to all surety releases. Transforming family members into civilian jailers has several consequences as it disrupts/worsen familial bonds, places undue strain on the surety (and possibly the accused), and makes everyday life for both parties more challenging. Certainly, this is the sentiment that is reflected in most reports published on Canada’s current bail system, which attribute surety releases to higher rates of pre- trial detention and administrative breaches (JHSO 2013; Webster et al 2009). Ironically, what is meant to prevent an accused from breaching his/her bail may create criminogenic situations that could result in further charges and make future bail difficult to obtain. At the same time, some families are also less inclined to breach an accused or define certain behaviour as problematic because of these bonds, challenging current assumptions that surety releases are overly onerous. Given the relative increase in the number of surety releases in recent years and the role friends and families play in these proceedings, it becomes important to not only assess how sureties define and identify complying versus potentially non-complying actions but also how it affects relationships between the surety and the accused.

While the potentially negative outcomes that arise on account of having a surety helps identify some of the possible collateral consequences of this type of release, Sampson (2011) notes the value of also identifying constructive outcomes. In some instances, criminal justice interventions can have a productive value (Turnbull and Hannah Moffat 2009) by removing an abusive parent out of the house or assisting with social reintegration. However, when studying collateral consequences or hidden sentences, scholars tend to focus solely on the adverse effects, both intentional and unintentional, that arise from criminal justice interventions. Researchers studying bail similarly and perhaps prematurely infer that surety releases are almost always overly

15 onerous (CCLA 2014; JHSO 2013; Myers 2009, 2018). Without any evidence on the lived experience of surety releases it becomes difficult to draw these conclusions with confidence.

Addressing this gap, the present study identifies the collateral consequences, both positive and negative, of surety releases. Having friends and family transform into a civilian jailer affects the accused’s access to support networks in more ways than one. For some, being a surety increased their attachment to the accused, while for others this role broke or ruptured their relationship completely. Both effects likely have a bearing on the accused’s criminal behaviour and can provide some insight into the effectiveness of this type of release on future criminal desistance and/or persistence. Identifying these consequences can assist in the development of better institutional supports for accused and their loved ones before, during, and after bail. After all, once an accused is released on bail, their need for housing, employment, mental health, and drug treatment, go mostly unaddressed by members of the court. For sureties, there is even less support available. Unless they receive help from members of their own social network, sureties are left to their own devices to supervise, manage, and assist accused individuals. In this way, being surety is difficult for some as it interrupts the routine of their lives and exacerbates tensions in their relationship with the accused.

1.7 Chapter Overviews

The contents of this project are divided into six main chapters. First, I detail the methodological approach of this study, including the recruitment strategy, sample descriptors, data analysis, and limitations. Studying surety releases presents a unique set of challenges. Primarily, the Ministry of the Attorney General does not systematically document or track information on sureties for adult accused. This means that accessing relevant existing data is nearly impossible. Second, sureties themselves are a unique group that are not easily identifiable in the broader population. Surety suitability is determined on a case-by-case basis. And while there are guidelines to determine this (i.e. assets, criminal record, relationship status, employment), these are sometimes thrown out the window if a surety can garner the trust of the court in other ways (i.e. by enrolling the accused in counselling). There are no surety support groups online or in person, and because defense counsel represent the interests of the accused, they provide only minimal assistance in identifying possible participants. The lack of available data and statistics on sureties and the challenges identifying these individuals in the broader population meant that I recruited

16 participants in the waiting area outside of bail court. To address my research questions, I relied on three principle methods: ethnographic observations, ‘go alongs’, and sequential interviewing. In addition to nearly a year’s worth of ethnographic observations of the courtroom waiting area, bail hearings and estreat court, I interviewed 56 individuals prepared to be surety and followed- up with 36 of them several months later. Together, the results from this data form the basis of this project.

Chapters 3 through 6 analyze the lived experiences of sureties at two key points in time: the first being at the time of the bail hearing and the second being several months into their role as surety (at least 2 months of experience). In Chapter 3, I assess the role sureties play in informing release decisions based on their own reasonings for coming forward. There is no denying that surety releases allow the court to widen their net of control around accused individuals. Yet, the results of Chapter 3 suggest that this net must be viewed as a by-product of the assemblage of control between the court’s and the accused’s loved ones. Initial interviews with sureties indicate that one of the primary reasons they agree to be surety is to help the accused get their lives back on track. Accompanying sureties as they are processed by the courts shows that this motivator, among others, encourages them to recommend their own release conditions that are sometimes imposed by the JP. This creates a symbiotic relationship whereby friends and family get an opportunity to assist the accused while expanding the court’s control.

Chapter 4 continues this discussion by following-up with sureties outside of the courthouse after they have had time to settle into their new legal role. Courts expect sureties to prioritize the surveillance and control of the accused when enforcing conditions in an effort to prevent breaches or further criminal activity. Follow-up interviews with 36 sureties show that they both align and depart from these legal expectations, which complicates portrayals of sureties as “dupes” or “pawns” of the state. While in some respects sureties become secondarily prisonized (Comfort 2008) by assuming a role more akin to a civilian jailer, they also focus their attention on other practices that seemingly move away from court directives like relaxing conditions for good behaviour. This show of discretion transforms penal control yet it also places sureties at risk of financial reprisal if the accused is caught breaching their conditions. Thus, while sureties are integral to the casting of the net of control as argued in Chapter 3, they are also susceptible to getting swept along in it.

Building on this, Chapter 5 explores the reporting habits of sureties. One main obligation of sureties is to report the accused for failing to abide with a condition of their release or committing a crime. It is this obligation that makes surety releases a considerably more onerous form of release than simply being released on “your own recognizance.” Using the same 36 follow-up interviews and estreat observations as Chapter 4, this chapter finds that despite the general commitment sureties showed towards supervising the accused, how they defined breaches or non-compliant behaviour varied considerably based on the perceived severity of the act, the fairness of the conditions, the accused’s best interests, and their own bias towards the law. The relative closeness between the surety and the accused complicated the reporting process, with some sureties reporting a greater willingness to overlook breaches than others. Yet, the proclivity to report court violations to the police draws attention to the tensions that arise when accused’s fail to live up to their surety’s expectations and the ways sureties use their position to try to modify the accused’s behaviour. The ability of friends and family to leverage the consequences of non-compliant behaviour conceals the more punitive aspects of releasing accused into the care and control of friends and family.

Having the support of friends and family is vital for accused individuals who must deal with the uncertainty of being criminally charged. Not only do friends and family support accused persons by coming forward as surety, they also offer a host of tangible and intangible supports like housing and positive encouragement. Yet, interviews with sureties indicate that the actions of the accused takes on new meaning under this arrangement, which can disrupt, enrich, or unhinge important relationship ties. The results of Chapter 6 show that accused who have difficulties abiding by the conditions of their release are often viewed by their surety as ungrateful and irresponsible while accused who appear to make an effort are viewed considerably more favourably. The resulting relationship outcomes have significant implications for the surety’s willingness to support the accused in the future. For accused who have minimal social supports to begin with, this not only makes it harder to be released from custody in the future but can also adversely affect long-term desistance from crime.

Finally, the concluding chapter begins to unpack the culminative effects of bail on the sureties themselves. Allowing accused individuals to live in the community while they await trial minimizes the substantial personal and financial costs involved in pre-trial custody, yet it places significant demands on the friends and family who come forward. The costs of being surety on

18 the lives of these individuals represents a punishment drift that raises doubt about the state’s ability to protect ordinary citizens from harm. This chapter concludes by offering recommendations to minimize the negative effects of bail for both accused and their respective sureties.

Chapter 2 The Cross-Functionality of the Courthouse as a Research Site: Participant Recruitment, Data Collection, and Analysis An Exercise in Reflexivity: Why this Topic?

Reflexivity is an important practice used in qualitative research. It challenges the researcher to “explicitly examine how their research agenda and assumptions, subject location(s), personal beliefs and emotions enter into their research” (Hsiung 2008: 212). It turns the investigative lens towards the researcher by examining their role at various stages in the research project, including research design, data collection, analysis, and knowledge production. For this reason, I begin this methods chapter by actively examining why I settled on this project and how prior field work and personal experiences fundamentally shaped my initial research questions and approach.

The seeds for this study were planted while I completed field work for another project. During this time, I spent countless hours a week in court observing bail hearings. Anyone who spends time in court knows that criminal justice moves slowly. Some days, this meant I spent more time sitting in the court’s waiting area than I did observing actual bail hearings. As I waited for court to reconvene, I made several informal observations about the people who proposed themselves as surety. Not only were these people often closely related to the accused, they also appeared to be emotionally invested in helping the accused get released. While they spoke with the Crown and defense in the waiting area, it was evident that many had specific intentions for the accused’s release plan. During breaks, I spoke with potential sureties about their desire to see the accused change as well as their frustrations with having to sit in court all day. Instead of helping the time pass, these observations and discussions peaked my sociological imagination because they were reminiscent of my own personal experiences of having a loved one on bail six years previously.

When I was 17, my dad was charged with assault and placed on a stringent bail release with his younger brother and father as sureties. While I was not surety, sitting in court brought back memories of trying to help facilitate my dad’s compliance. Although I was only 17, I understood the consequences of non-compliance and felt a lot of pressure ensuring my dad did not break one of the conditions of his release. At first, my dad was extremely willing to comply. However, after several weeks of abiding by his conditions, he started to test the boundaries and eventually

19 20 committed minor breaches (the police never caught him and his sureties never reported him). During this time, my dad’s relationship with his brother also grew more fragile. While my dad was grateful that his brother bailed him out, he commonly complained that he had very little privacy living in his brother’s house, which caused tension in their relationship. Within the ambit of this experience, my observations and informal discussions with sureties formed the basis of the current project. Particularly, I began to ask: what is it like being a surety for an adult accused of a crime? And how does this duty affect important relationship ties between the surety and the accused?

While these experiences prompted the initial research questions for this project, I also acknowledged the ways in which my family’s circumstances might be different from the people I met in court. This was my dad’s first (and only) criminal charge, he was steadily employed in a full-time job, and he had the support of his family. Not only did these circumstances likely contribute to the Crown consenting to his release, they might have also factored into how he and his sureties experienced life on bail. It also meant that I approached the project with specific expectations of what I might find. Specifically, I believed that surety bail releases were problematic. Living without my dad for eight weeks was extremely difficult. He missed my high school graduation and I constantly lied to my friends about his whereabouts because I was deeply embarrassed. My dad’s brother and his wife also had to make certain accommodations to allow my dad to live in their home. Identifying this inherent bias early on in the research project was important because it helped make connections that I would have missed otherwise. For instance, while I was initially surprised to find out that some people found being a surety constructive, I understood that compared to my experiences, being surety gave some people the control they needed but previously lacked to help an accused make meaningful life changes. My experience helped put into perspective how bail affects the lives of sureties and accused differently based on a variety of factors including the accused’s willingness to abide, prior relationship ties and the availability of social support. This realization gave me a certain degree of empathy that was needed to help build rapport with the participants in my study, lessening the divide between “researcher” and “researched” to some extent. Accordingly, this chapter proceeds by describing participant recruitment, the interviewing approach and process, as well as the sample demographics and main analytic strategies. Finally, the limitations of this methodological approach are discussed.

2.1 Recruitment and the Initial Sample

I knew from the onset of this project that data collection would be challenging for a number of reasons. First, sureties are a very diverse group. The court determines surety suitability based on criteria such as their closeness to the accused, their financial assets, and life circumstances (including any past criminal history, current employment, family responsibilities, etc.). However, the most important factor aside from their relationship to the accused appears to be how well they will be able to supervise the accused (Schumann 2018). This means that sureties range in their background and life experiences, making it difficult to identify them in the broader population. Second, the Ministry of the Attorney General’s office does not keep very detailed records of people released on bail and their sureties. Without any identifying information it is nearly impossible to select a sample of current or past sureties from which to interview. As a result, I turned my attention back to the only place I was guaranteed to cross paths with sureties: the courthouse.

I recruited participants as they waited to become sureties outside of the bail courtrooms. Typically, when potential sureties arrive in court, they do not know the charges against the accused. Most of the time, they are asked to be a surety on behalf of the accused by police, a court representative, or the accused’s lawyer. Unless otherwise directed, potential sureties are asked to arrive in court at 9am, though bail court does not officially start until 10am. Bail court is known for being a particularly lengthy process as lawyers must organize their notes and conduct necessary pre-hearing interviews before a bail hearing can take place. For potential sureties, filling out affidavits, getting a police records check and meeting with the accused’s lawyer can take upwards of a full day depending on a number of factors including the complexity of the case, length of the daily docket, and availability of court staff. Moreover, recent changes to the way bail operates means most sureties must also be screened by a Crown bail vettor prior to the hearing (MAG 2017). The bail vettor is responsible for reviewing the allegations, interviewing any potential sureties, and determining the Crown’s position on the case. Making a positive impression on the bail vettor is important because it helps inform the Crown’s decision to consent or contest an accused’s release. For example, if the bail vettor approves the surety on the spot then the Crown and defense are able to present a joint recommendation for release to the Justice of the Peace. The amount of time waiting to become a surety provided an excellent opportunity to meet potential participants. Lee (2012) used a similar approach in his study on

22 gun shot victims. Waiting in an outpatient trauma clinic provided Lee with an efficient way to meet participants who often had a lot of “dead time” as they waited to be seen by practitioners. Like patients in a hospital, sureties often have to wait a long time before they are needed in court.

I attended court between three to five days per week over a six month period (recruitment took place at the Waterloo Region Courthouse). Each day, I arrived at 10am, staying until I spoke with everyone in the waiting area. Depending on the number of sureties present in the waiting area, some days I stayed for only a few hours while other days I stayed until court ended. As discussed in the introduction, the number of surety releases has declined following the Supreme Court’s decision in R. v. Antic (2017).8 The reduction in sureties impacted my data collection to a certain extent because some days there were fewer sureties available, which prolonged the recruitment process. After going through court security9, I sat in the waiting area and jotted a few observational notes, including date and time, number of people in the waiting area, and possible demographic information (i.e. gender, race, age) based on my own visual assessment. I then made “the rounds” by asking each person waiting if they were there to be a surety. If they said yes, I formally introduced myself and gave a brief description of the study. I obtained verbal informed consent and contact information from everyone interested in participating. I then asked some preliminary questions using the initial interview guide (see Appendix A). Oftentimes, our interview would be interrupted by lawyers wanting to interview or update the surety on the case, which provided excellent opportunities to get observational notes and ask questions about the encounters (more below). Whenever possible, I also accompanied sureties into the court room for the bail hearing and chatted with them during breaks about the on-going proceedings. For the most part, interviews were recorded verbatim using hand written notes unless I felt my writing was detracting from the interview. I would then take detailed notes at the next earliest occasion, usually later that day. In between interviews, I also took observational notes about how other sureties navigated the process. This included how they were approached/ treated by court

8 Schumann and Yule (R&R) indicate that this is a sign that bail courts are following precedent set in R. v. Antic and R. v. Tunney by showing restraint and following the ladder principled outlined in sec. 515(2) of the Criminal Code.

9 Court security involves having your belongings pass through a scanner and walking through a metal detector. There are several police officers working the entrance of the court house, which can be incredibly intimidating. After about a week of attending court, I became known to the officers and they allowed to bypass security all together. I believe my physical appearance (white, female) minimized concerns that I was a threat.

23 personnel, their verbal/non-verbal reactions to court information, and their interactions with accompanying friends/family.

Of the 97 people I approached, 60 (or 62%) initially agreed to participate in the study (see Appendix B for basic demographics on individuals who declined). Those who declined normally reported that they were: 1) too nervous or stressed to participate; 2) uncertain about their involvement in the case or what to expect, and 3) too busy (either with lawyers that day or in their daily lives). English was also a major barrier to participation for some individuals, which means my sample does not capture non-English speaking individuals. While not capturing this population is a limitation of the study’s design, this groups represents a relatively small number of sureties who entered the courtroom in this jurisdiction (based on my observations). Still, they might have a different set of experiences as sureties than what I report here. For instance, communicating with lawyers, judges, and court staff via a court approved interpreter may result in greater misunderstandings of important court instructions and difficulties post-release. Moreover, finding an appropriate interpreter can take several days, which prolongs the time potential sureties need to wait – perhaps inducing more stress and uncertainty. Unfortunately, studying this group would have required a large and diverse research team that went beyond the scope of this study. Languages requiring an interpreter included French, Swahili, Urdu, and Spanish.

Despite initially agreeing to participate, four individuals were informed by counsel that the accused no longer required a surety to be released. This meant that I ended up with an overall initial sample of 56 sureties. Table 1 provides demographic information of the sample. For the most part, I obtained this information by asking participants direct questions during the follow- up interview. When I was unable to ask participants these questions directly (due to time constraints), I tried to fill in the blanks by referring to my observation notes. For example, if someone else had referred to the participant using gender-specific pronouns, I used this to determine gender. Sometimes the age, race/ethnicity, and employment status of a participant would be specified during a bail hearing so I used this to help fill in gaps in the sample information. See Appendix C for more details regarding my demographic observations.

Women made up the majority of the 56 individuals included in the final sample with one-third being men (See Table 1). I also interviewed two married heterosexual couples. 73 percent

24 identified or were visually observed as being white/European. The sample was quite diverse when it came to age, though most individuals were or appeared to be over the age of 40. Half of the participants had either full or part-time employment while nearly one-third were either unemployed or retired. As Schumann (2018) finds, contrary to expectations, unemployment is often viewed as an asset by the court when determining surety suitability because the surety can provide more thorough supervision. Most sureties were parents to the accused, followed by other relatives (i.e. siblings, grandparents, cousins, uncles/aunts) and friends. Sureties were the accused’s romantic partner or employer less often. Half of the sample disclosed that this was/would be their first time acting as a surety while another 16% had experience as a surety but not for the accused in question. Roughly one-third reported that this was/would be their second or third time supervising the same accused though only three reported that this was their third or more time. Knowing whether this is a representative group of sureties is challenging due to the extremely limited data available about sureties. However, based on the demographic observations of those who declined participating along with my general observation notes of the waiting area, this sample seems to be representative of the people who come forward as surety in this jurisdiction.

Table 1: Initial Sample Demographics Demographic Variables n= 56 % Gender Male 18 32% Female 36 64% Couple 2 4% Race White/European 41 73% Black 6 11% South Asian 3 5% West Asian 2 4% Latin American 2 4% Southeast Asian 1 2% Indigenous 1 2% Age 20-29 10 18% 30-39 11 20% 40-49 11 20% 50-59 11 20% 60+ 13 23% Employment Status Employed 28 50% Unemployed 9 16% Retired 11 20% Unknown 8 14% Relationship to the Accused Parent 21 38% Relative (i.e. sibling, 12 21% cousin, uncle, etc.) Friend 14 25% Romantic Partner 5 9% Employer 4 7% Surety History First time ever 28 50% First time for this 9 16% accused Multiple times for same 18 32% person Unknown 1 2% Follow-up Interview 36 64% Conducted

2.2 Rapport Building, the “Go-Along,” and the Initial Interview

Helping friends/family pass time as they waited to become sureties allowed me to gain rapport and ease the stress that some experienced being in court. Several participants even thanked me for giving them something to do while they waited. The rapport I built with the potential sureties I interviewed meant that many felt comfortable with me being present during lawyer updates and the bail hearing (for a similar rapport-building technique see Carpriano 2009). While the initial interview guide is designed to take only 15-20 minutes to complete, I was often with potential sureties from anywhere between 1 to 4 hours, sometimes longer. In many ways, this approach was similar to Kusenbach’s (2003: 463) “ride along” method in which researchers “accompany individual informants on their ‘natural’ outings, and through asking questions, listening and observing – actively explore their subjects’ stream of experiences and practices as they move through, and interact with, their physical and social environment.” While this method is typically used in urban health research to observe informants’ routine spatial practices in situ, the breadth of data I collected using this approach demonstrates that it can also be beneficial when capturing participants’ perceptions and interpretations of a specific and unusual event as it occurs. Though for some friends and family, waiting to be a surety was unfortunately a common experience, as demonstrated through their familiarity with court staff and knowledge of the proceedings.

Speaking with participants as they waited to become sureties enabled me to examine naturally occurring but subtle patterns and variations in social encounters that would be difficult to capture in an off-site interview. Not only was I able to observe sureties as they interacted with lawyers, police, and court staff and participated in the bail proceedings, I was also able to ask questions and get their thoughts on these experiences as they happened. According to Kusenbach (2003: 465) “the strengths and advantages of participant observation, interviewing and go-alongs accumulate when they are pursued in combination” because it expands “the range of data- gathering techniques in order to exploit the different perspectives and angles each provides.” So while participant observation allows access to ‘naturally unfolding events’ (Becker and Geer 1957), it is filtered through an outsiders perspective. Interviewing helps to overcome this limitation by revealing people’s constructs of themselves and the world around them, yet they are primarily static encounters that discourage context sensitive reactions (Carpriano 2009; Kusenbach 2003). Accompanying potential sureties as they moved through the bail process allowed for dynamic observations and interviews about what it is like to become a surety.

The following example demonstrates the value of using a myriad of techniques when collecting data. I spent nearly an entire day with Lydia and Mandy as they waited to find out if Lydia could be a surety and later, if Josh [the accused and Mandy’s boyfriend] would be released. While Lydia, Mandy, and I were chatting, Josh’s lawyer came up and told them he had “bad news” and left. Upset at the lack of details, Lydia remarked “What kind of idiot does that? Just awful. Now we have to wait here all stressed and that.” Her and Mandy proceeded to spend the next ten minutes berating the lawyer for his insensitivity and incompetency. Yet in my follow-up interview with Lydia, she described her time in court as “not that bad” and the lawyer as “helpful” because he was able to get Josh released. This example demonstrates the benefit of using a range of techniques when collecting data. In the moment, her experience with the lawyer was poor but this was later overlooked because he was able to get her friend released on bail. If I had only just interviewed Lydia about her experiences at a later date, I would be unable to understand how this process is experienced in situ and how interactions between sureties and court personnel shape their understanding of their role.

2.3 The Sequential Interviews

After meeting sureties in court, I scheduled follow-up interviews with them eight weeks later. However, due to scheduling conflicts and difficulties connecting with some participants, the follow-up period varied. While most interviews occurred around the two month mark, some took place as much as six months after the initial interview. Most interviews occurred at the surety’s home or at a public place such as Tim Hortons or Williams Café. I designed the interview to take one-hour but some were several hours in length. Five interviews took place over the phone because the sureties resided in another geographical region (i.e. Ottawa). To make participants feel at ease and to maintain rapport, I incorporated feminist interviewing techniques such as exhibiting a warm demeanor, listening to participants, and allowing them to make choices about their participation (Campbell et al. 2009). I also shared minor details about my own experiences having a loved one on bail at the end of some interviews, though I was careful to note how my status and identity as a white, young, middle class woman might have shaped by understanding of the process differently. To prevent my own subjectivities from over-riding the participants’ own perspectives, I used reflexive practices like journaling and peer debriefing (Lincoln & Guba 1985). I also made sure to speak in clear, plain language and read all interview material out loud to overcome any assumptions I held about participants’ comprehension.

Prior to the interview, I reviewed the purpose of the study and the informed consent process with each participant and asked them to verbally indicate whether they were still voluntarily participating. At this time, I informed them that they could withdraw from the interview at any point or decline answering any questions. Before moving on, I gave each participant the opportunity to ask their own questions. The lack of support that sureties receive from criminal justice officials meant that most of the participants wanted clarification about the surety process itself. Commonly asked questions included: How long will I have to be surety for? How can I request that a condition be modified or removed? What happens if I want to travel? Providing information and assurances to sureties was an important part of the interview. All interviews were semi-structured, allowing for directed exploration and cross comparisons between participant responses (Charmaz 2006; see Appendix D for interview guide). Interview questions were mostly open-ended and centered around four main themes: the everyday experience of being a surety, relationship ties, impacts on daily life, and views on the criminal justice system. Throughout the interview, I asked clarifying questions and posed potential interpretations to ensure I fully understood their point of view. I recorded all responses verbatim by typing them into my laptop computer. If I felt my typing detracted from my ability to listen and converse, I wrote in short hand and expanded on these notes in greater detail immediately after the interview. At the end of the interview, each participant received a $20 gift card as a token of my appreciation. Because I destroyed participants’ contact information after the interview to protect their anonymity, I strongly encouraged everyone to follow-up with me six months later to obtain the results of the study.

Of the fifty-six people I originally met in court, I conducted official follow-up interviews with thirty-six of them (see Table 2). While the follow-up sample is nearly identical in terms of gender and race proportions to the initial sample, there are some notable differences. Less people between the ages of 20-40 returned my follow-up calls compared to those who were 50 years or older. Relatedly, I was able to conduct follow-up interviews with all participants who were retired, which may be a function of their availability. I also spoke with less individuals who were romantically involved with the accused during the follow-ups than I did originally. It is possible that these individuals had a more personal connection to the accused and did not feel comfortable speaking with me now that their loved one was released. At the same time, I spoke with more people who had previously been surety for the same individual. Having past experiences as

29 surety perhaps made them more inclined to speak with me because they possibly felt more comfortable with the process overall. Sixteen participants had sufficient experience as a surety when I first met them because they were one already or had been one in the past two years. Depending on their availability, I either conducted a lengthier follow-up interview (see more below) on the spot or scheduled a time to do so at a later date. These individuals were often in court because they were: bringing the accused to a court appearance, trying to be surety again, or supporting someone else.

Of the twenty sureties who I was unable to conduct a follow-up interview with, seven no longer had a number in service, three were denied the opportunity to become surety, eight did not return my follow-up messages, and two were no-shows. Of the eight that did not return my calls, I briefly spoke with two over the phone. Tabatha informed me that being surety did not work out and she pulled bail while Cynthia had reported her son to the police and was extremely distressed. Both women requested I try rescheduling with them on a different date but then never responded to further follow-ups. One of the no-shows, Jane, initially reported that she had been “very busy dealing with my son’s case” but that things “only recently settled down.” She did not return my calls to reschedule.

Table 2: Follow-Up Sample Demographics Demographic Variables n= 36 % Gender Male 11 31% Female 23 64% Couple 2 5% Race White/European 27 75% Black 4 11% South Asian 1 3% West Asian 2 6% Latin American 1 3% Indigenous 1 3% Age 20-29 2 6% 30-39 6 17% 40-49 8 22% 50-59 8 22% 60+ 12 33% Employment Status

Employed 20 56% Unemployed 4 11% Retired 11 31% Unknown 1 2% Relationship to the Accused Parent 16 44% Relative (i.e. sibling, 8 22% cousin, uncle, etc.) Friend 9 25% Romantic Partner 1 3% Employer 2 6% Surety History First time ever 11 31% First time for this 9 25% accused Multiple times for same 16 44% person

The recruitment process required a degree of flexibility that I had not initially anticipated. Since the Ministry of the Attorney General does not keep information on sureties, it is difficult to identify this group in the broader population. Because I chose to recruit in the courthouse, I was exposed to people with varying levels of experience as surety. In order to capture this diversity in experience, I expanded my research parameters by including individuals who were already surety or had been one in the past two years. Although I was unable to document their initial experience becoming surety in situ, I asked modified questions from the initial interview guide and relied more heavily upon directed backward recall to gather information about their life circumstances in the time prior to becoming surety. For many friends and family, becoming surety had a significant and noticeable impact on their daily lives so it was fairly easy for them to reflect on a time prior to being surety. This was particularly helpful when asking about any changes in their relationships to the accused or other life circumstances that might have occurred since becoming surety. As a result, these interviews tended to last longer than regular follow-up interviews.

Together, the thirty-six interviews provide important insight into what it is like for friends and family to enforce court-orders and report potential violations. While the court is quick to refer to sureties as civilian jailers, very little research has actually followed-up with sureties to see how they undertake this role outside of the courtroom. Asking sureties about their ability to act on

31 court expectations yielded detailed information pertaining to the transformative process of becoming surety and the difficulties felt when imposing the bail terms. The extent to which sureties followed court orders was often tied to their overall feelings toward the criminal justice system and doing what was best for both themselves and the accused. Their experiences illustrate how penal control gets redefined within the context of their daily lives and existing relationship dynamics with the accused.

2.4 Supplemental Data

The themes identified during the interviews were triangulated using data from a year’s worth of estreat court observation in Waterloo Region’s Superior Court. Triangulation is commonly used in qualitative research to provide more detail on the subject (Cohen and Manion 1989) and cross- check data using multiple sources (Denzin 1970; O’Donoghue and Punch 2003). Based on the court schedule, estreat hearings were held for a full day once every three months. In total, I observed eight full days of estreat hearings and saw 112 cases. Detailed notes were recorded for each case, including the facts of the breach, Crown position, defendant and surety testimony (if present), as well as the judge’s decision. When the defendant and/or surety were not present, cases took five minutes or less to complete (and almost always resulted in full forfeiture of the bail amount). Otherwise, cases where the defendant and/or surety were present took between twenty to forty minutes, with the longest hearing lasting the full morning. Of the 112 cases observed, forty-five percent resulted in some form of estreatment (monetary forfeiture). Thirty- four percent were adjourned to a later date because: 1) the Crown wanted more time to provide the defendant and/or surety proper notice; 2) the defendant’s charges were still not resolved; and 3) the defendant and/or surety requested additional time to speak to a lawyer. In twenty-four cases, the Crown withdrew their position entirely. This study, however, only uses observations from the thirty-one cases that involved the estreatment of a surety. In all cases, the surety was provided with an opportunity to explain to the court the circumstances of the breach and vindicate themselves of any financial penalty. The surety’s testimony, therefore, provided an additional opportunity to further understand the level of supervision sureties offer in the community, any potential challenges they experience enforcing court orders, and the calculus used when deciding not to report the accused. These data are used in the upcoming chapters to help supplement the results from the follow-up interviews.

2.5 Analytic Strategy

Broadly speaking, I analyzed the data thematically though the process varied chapter by chapter based on the main research questions addressed and data used. The below analytic approach is therefore specific to the referenced chapter.

2.5.1 Chapter 3

This chapter asks: what motivates people to come forward as surety and how does this shape the types of conditions sureties recommend during a bail hearing. To capture the multiple dimensions of the bail experience, I analyzed both my field notes and initial interviews using thematic analysis (Braun and Clarke 2006). To better understand the reasons for becoming a surety and the role sureties played in shaping bail outcomes, I systematically analyzed the data for key themes regarding potential motives, drives, and requests for bail conditions. Through the process of data collection, re-reading of transcripts, and initial coding, preliminary themes were identified based on their prevalence within the data and whether they captured something important in relation to the study’s main objectives (similar to Brunson and Miller 2006). By focusing attention on surety motivations and requests both during our interviews and in the bail hearing, several key themes were identified as possibly being important to the overall aims of this study. These themes served as an initial starting point when organizing the data and provided direction on how to proceed with more selective coding. Notes and analytic memos were used to reveal major themes within the data and these aided in the construction of a core narrative surrounding the process of becoming a surety.

2.5.2 Chapters 4 and 5

Chapters 4 and 5 explore the lived reality of enforcing court-ordered conditions and reporting potential breaches. For the analysis for Chapters 4 and 5, I scanned the interview and observational data for relevant information relating to enforcement strategies (i.e. how and to what extent sureties enforced court-ordered conditions) and reporting habits (including any barriers that prevented sureties from reporting). Based on court observations and prior research on surety releases, courts expect sureties to implement strategies that prioritize strict supervision. Thus, for Chapter 4, I categorized all enforcement strategies that emphasized the rigorous monitoring of the accused’s behaviour and daily activities as in keeping with court demands.

Treatment or support-like strategies that focused more on modifying behaviour rather than strict compliance were categorized as diverging from court directives. Recall that behaviour modifying conditions fall outside the official mandate of bail (see Chapter 3). Even though the strategies were dichotomized into two categories, this did not preclude sureties from employing both types of strategies. Some overlap also existed between categories whereby sureties wanted to encourage behaviour changes but did so using control-based practices. For example, Simon’s number one priority was helping his nephew get sober. While he offered his nephew support and access to treatment, Simon also arranged for weekly drug testing, which erred on the side of control. Most friends and family used a broad range of techniques to help encourage compliance and good behaviour, which often reflected the challenges of being surety as well as their own personal objectives behind helping the accused. While being closely related to the accused, having little to no legal training, and fulfilling other personal obligations made it difficult for friends and family to assume their legal role as surety, they also provided a backdrop against which sureties developed their own enforcement practices that differed from court expectations. The findings of this analysis are divided into two main sections that identify both the methods and challenges of enforcement.

Building off the results from the analysis of Chapter 4, Chapter 5 assesses the reporting habits of sureties using information recorded during the follow-up interviews and estreat court observations. In our follow-up interviews, I asked all sureties questions about hypothetical bail breaches. Questions emphasized how they would both react and feel in response to their loved one violating the terms of their release (see Appendix D for questions). Due to the possible sensitivity of these questions, I asked them during the second half of the interview. The questions often elicited one of two responses: yes, I would report or I would only report if the accused committed a violent offense. Prior research that identifies factors that persuade/dissuade crime reporting by victims and non-victims informed the initial coding of this data. Differences in responses often came down to the person’s trust in the criminal justice system and the accused’s willingness to make life changes.

2.5.3 Chapter 6 This Chapter utilizes data previously described in Chapters 4 and 5. Using the sequential interviews from thirty-six sureties, this chapter analyzes whether and to what extent being a

34 surety impacted the relationship between friends/family and the accused. Understanding the effect of this process from the perspective of the friends and family of criminalized people is important because they too are affected by the criminal event and often need to make accommodations for the offending behaviour (Christian and Kennedy 2011). When it comes to being a surety, friends and family help secure an accused person’s release from custody by assuming the role of a community jailer. The challenges sureties experience trying to balance these often competing roles is likely to have some impact on their relationship with the accused. How these relationships change on account of being surety has important implications for accused who come to rely on their friends and family for support. To assess whether and to what extent being a surety impacted these relationships, I asked each participant a series of questions and prompts during our initial interview about their relationship with the accused prior to becoming surety. Questions included: How do you know the accused?; Describe your current relationship with the accused?; What made you decide to become surety for the accused?; And how would you feel if the accused breached their bail? Capturing the strength and quality of these relationships before the participant became surety allowed me to compare their responses to similar questions asked during the follow-up interview.

Like the initial interview, the follow-up interview included a series of questions to assess how relationship dynamics might have changed since becoming surety. I asked the following questions: Describe your current relationship with the accused; Has being a surety changed your relationship with the accused in anyway (positive or negative)?; Has being a surety caused any new conflicts or made existing conflicts worse in your relationship with the accused?; Has it improved any existing conflicts?; How do you think the accused would feel if you breached them or pulled your bail?; How might this change your relationship with him/her?; And does your duty as surety interfere with your role as the accused’s mother/ father/ sister/ brother/ daughter/ son/ friend? Answers to these questions were cross-referenced with each participant’s answers about their relationship in the initial interview. In addition to determining the effect of being a surety on the strength and quality of the relationship, I was also interested in assessing the surety’s future willingness to support the accused. Increases or decreases in a surety’s intentions to support the accused were taken as further evidence of a change in relationship status.

In order to track changes in these relationships over time, I organized responses temporally based on how the participant described their relationship with the accused: prior to being surety, during

35 the release, and in the future. Once this was complete, I then proceeded with open coding, which allowed for the identification of preliminary categories that were then used for mapping out a more in-depth analytical framework. Like the different effects of incarceration on family-inmate relationships, I too found variation in how surety releases shaped the relationships with the accused. Similar to Christian and Kennedy (2011) who discovered that imprisonment affected relationships in three key ways, surety releases also had three primary effects: constructive, volatile, and damaging. Though these categories are not mutually exclusive, participants tended to emphasize one more than the others. In recognizing the complexity that exists within these relationships (Leverentz 2006), it is also possible that there may be drift between one or more categories at different points in the surety experience.

2.6 Limitations of this Analytic Approach

This study is not without limitations. First, the sample lacks a comparison group, specifically those who are asked to be surety but decline. Some insight, however, can be gleaned from a few individuals I spoke with and those who reported a decline in their relationship after becoming surety. Preliminary evidence suggests that people refuse to be surety for a number of reasons, including beliefs that the accused: 1) is likely to reoffend; 2) is undeserving of assistance; and/or 3) has issues they cannot treat such as addictions or mental health. Others genuinely believe that jail is the best place for the accused; that by staying in jail their loved one is not out causing trouble or hurting someone, is able to “dry out,” and/or has a roof over their head. Mowen and Visher (2016) similarly find that mental health and prior convictions among other factors also lead to declines in family support during incarceration. Understanding why friends and family refuse to be surety, especially if they agreed to in the past, would further help identify the more long-term impacts bail decisions have on an accused’s access to and reliance on social support at this stage in the legal process. I was, however, able to make within-group comparisons that helped identify possible underlying casual mechanisms that explain differences in enforcement, reporting, and effects on relationships among sureties.

Second, it is possible that this study over sampled those who already had strong relationships with the accused and were thus more willing to talk about their experiences than those who had a weaker relationship with the accused from the start. Relatedly, some sureties might have over- exaggerated the status of their relationship with the accused during the initial interview in order

36 to avoid reducing or jeopardizing the accused chances of being released. One criteria that helps the court’s determine the suitability of a surety is their ‘closeness’ to the accused. While I emphasized that this study was in no way affiliated with the criminal justice system, the initial interviews did take place inside the courthouse and usually on the same day as the bail hearing. Responses to some of the questions (i.e. how would you describe your relationship with the accused) might have been pre-rehearsed or pre-planned based on what they expected to be asked by either the Crown or the JP. To minimize this, I asked potential sureties several follow-up questions regarding their relationship with the accused that helped to further identify the strength of their relationship. One of the advantages of conducting sequential interviews is that participants often described their relationship with the accused as existing in two parts: pre- release and post-release. This allowed me to identify any discrepancies in how they described their relationship over the course of our two interactions.

Third, while providing in-depth data, the sample itself is small and taken from one jurisdiction. Future studies could benefit from sampling a larger group across different jurisdictions. Having a sufficiently large enough sample to run complex quantitative analyses would further aid in addressing such questions like: what factors lead to surety success or failure, what factors contribute to declines in relationships, etc. Moreover, this study only captures the bail experience from the surety’s perspective. Sureties may be more inclined to ‘sugar coat’ their desire to help the accused. Indeed, Comfort (2008) refers to a similar limitation when studying the wives and girlfriends of male inmates. She acknowledges that some participants in her sample may “aggrandize the degree of their retrospective or prospective support” (Comfort 2008: 189) due to hopes that their loved one will change. Sureties may likewise conduct certain actions or hold expectations about the accused that they perceive as seemingly reasonable and helpful but may be interpreted negatively by the accused. These actions may themselves contribute to a decline in relationships though none of the sureties interviewed identified their own attitudes as possibly causing a breakdown in the relationship. While none of the sureties I spoke with characterized their own actions and behaviour as overly harsh or even exploitive, some did talk about how their loved one was previously taken advantage of by other sureties who used their power and position to get what they wanted. In at least two examples, the surety I spoke with told me that the accused got into a physical altercation with their previous surety leading to a breach. Others described scenarios where the previous surety simply revoked because the accused refused to do

37 things like make dinner. Although my interviews with sureties did not capture this dynamic directly, it is possible that some of them likewise took advantage of the accused but either did not realize how their actions affected the accused (because they believed their actions to be helpful) or downplayed their role in the accused’s “failure.” Interviewing accused about their experiences would provide an additional perspective on what a surety bail release is like and the impact it has on relationships.

Lastly, in order to minimize rates of attrition following the initial interview, I followed up with most individuals around the two month mark. However, interviews with those who had been surety longer suggest that the follow-up period is important when assessing experiences on bail. For example, the longer someone is surety, the greater the chances that the accused may reoffend or breach. It also subjects the surety to same set of conditions for longer. Having to enforce a house arrest condition may become more challenging for someone after 8 months versus only two months. The short follow-up period may also under report the long term challenges that result from being a surety. Based on the current sample, it is unclear whether relationships that eroded on account of a surety release can recover over time. Knowing this would provide additional information on the hidden effects (both positive and negative) of surety releases.

2.7 Conclusion

The purpose of this chapter was to outline the methodological approach taken to address the main questions of this study. Ethnographic observation, “go alongs”, and 56 interviews provided data on the reasons people come forward as surety and their influence on court decision-making. These data, along with 36 follow-up interviews, also formed the basis of subsequent chapters probing sureties’ enforcement strategies, reporting habits, and potential changes in relationships. I analyzed the data using thematic analysis though the process differed slightly from chapter to chapter, which is detailed here. This chapter also discussed the limitations of the methodological and analytic strategy. Despite the noted limitations, the framework presented in this chapter effectively addressed the objectives of the study and provides some direction for future research. The following four chapters present the findings of this approach in detail as they relate to the extant research.

Chapter 3 “I want to get him back on track”: the Convergence of Reform and Control Modalities in Surety-Involved Bail Decisions Introduction

Prior to R. v. Antic (2017),10 sureties were a defining feature of bail in Ontario. Requiring accused to have a surety became “near automatic” when granting bail (R. v. Tunney 2018 para 45). While Schumann and Yule (unpublished) find that surety releases have declined since the Antic decision, over one third of accused granted bail are still released under the supervision of a surety. The use of sureties at the bail stage reflects a broader trend in the penal landscape that shows a downloading of crime control responsibilities from government or criminal justice specialists to non-state actors, including members of the public (Garland 2001). In addition to federal institutions and state prisons, schools, homes, workplaces, neighbourhoods and everyday routines are now the target of penal policies designed to extend the carceral reach beyond traditional methods of confinement (Garland 2001; Gottschalk 2009; Simon 2007). Drawing attention to the idea of the “prison beyond the prison,” Gottschalk (2015) documents the ways in which people continue to “get caught” in a web of control outside prison walls via probation, parole, the denial of civil liberties, and strict immigration policies. For Kaufman, Kaiser, and Rumpf (2018), the expansion of penal boundaries is characterized less by expressive forms of punishment and more by covert or hidden methods of control that seek to manage individuals both before and after formal sentencing. Using sureties as the analytic focus provides a theoretically rich opportunity to explore how penal control continues to transcend formal sentencing yet remains disguised by non-punitive laws and practices that makes it difficult to know how bail is experienced not just by the accused but by their loved ones as well. Surety releases are a prime example of how the penal state has expanded its net of control around individuals who have been formally charged but not yet convicted. Having friends and family assume the role of civilian jailer provides the state with greater access into the everyday lives of

10 As a reminder, the Supreme Court of Canada in R. v. Antic (2017) unanimously agreed that accused were too frequently being released on bail with sureties and too many conditions. Rather than reform the law, the decision reaffirmed the mandate of bail that already existed in sec515(10) of the Criminal Code. The Supreme Court declared that judicial officers and Crown attorneys must abide by the ladder principle and use restraint when making release decisions.

39 criminally suspect individuals. Yet, at the same time, offloading responsibility for accused onto sureties shifts the power to inform how control is dispensed in the community to ordinary citizens who enter into the role for their own purposes.

Using an approach similar to the “go-along,” which is a qualitative research technique used primarily in neighbourhood and health studies (see Carpiano 2009; Garcia et al 2012; Kusenbach 2003), this chapter follows 56 people as they enter the courthouse to become sureties. Participant observation and semi-structured interviews are used to: 1) identify the reasons sureties come forward in the first place, and 2) understand how these objectives subsequently shape the types of conditions sureties recommend during a bail hearing. Despite the risk of coming forward, friends and family became surety for four main reasons; they: 1) felt obligated to, 2) were pressured into the role by the accused or members of the CJS, 3) believed the allegations were minor or false, and 4) wanted to spark a turning point in the accused’s life. These motives often influenced sureties’ own plans for release, which they revealed through the detailed information they provided members of the court about the accused and/or the specific conditions they recommended.

Most of the conditions recommended by sureties addressed systemic issues they blamed for the accused’s pending legal troubles such as drug and alcohol usage, mental health, and negative social influences. By seeing bail as an opportunity to turn the accused’s life around, sureties introduced different modalities of control into the bail experience that emphasized personal reform. While this runs counter to the legal mandate of bail, the introduction of reform as a core objective of bail highlights the role friends and family played in casting the net of control that would consequently shape the lives of accused individuals. In this way, bail court can be viewed as a site where the often competing aims of the surety and the legal system merge to result in an “assemblage of control” that dictates release options for the accused. How sureties work with, against, and across court agents exposes the complex and often hidden relationship that exists between state and non-state agents. In exchange for providing the state with an additional avenue through which to manage accused individuals (Myers 2019; Schumann 2018), sureties become integral players in shaping what pre-conviction control looks like in ways that move beyond legal doctrine.

3.1 Widening the Web of Control: Downloading Penal Responsibilities to Non-legal Professionals

From both a risk and legal perspective, surety releases have three main functions. They extend the court's control over the accused through the enforcement of court ordered conditions, minimize the court's risk by taking responsibility for the accused, and act as civilian jailers by reporting all bail violations. In many cases, the courts impose conditions on the accused to minimize risks that they will abscond, reoffend, and/or interfere with the administration of justice before the disposition of the case (Trotter 2010). Frequently used conditions such as abstinence, mobility, and association conditions, restrict what an accused does, where an accused goes, and who an accused sees. Presumably the more risk an accused poses, the more conditions they will receive (Hannah-Moffat and O’Malley 2007). However, the limited available evidence and fast-paced nature of bail proceedings often results in the courts equating a criminal charge with a guilty conviction and requesting overly restrictive releases for most accused (Wyant 2016). Releases have been shown to be even more onerous for low-income women (Moore and Lyons 2007), visible minorities (Kellough and Wortley 2002; Wyant 2016), and individuals with addictions and mental health issues (CCLA 2014). While treating accused persons as if they are already guilty is contrary to constitutional laws that protect a person’s innocence prior to a conviction, it provides some explanation for the extensive use of sureties (R v Antic 2017; R v. Tunney 2018; Wyatt 2016). Even with conditions, managing the actions and behaviours of accused becomes increasingly more challenging once they are granted bail. Sureties therefore provide an additional layer of oversight by ensuring the accused follows all the conditions of their release and returns to court. This is further accomplished by forcing most accused to reside with their sureties and to follow the routine and disciple of the household.

In addition to controlling the actions of the accused, sureties also deflect blame away from the court should the accused breach or commit a new substantive offense. The potential threat of releasing a dangerous accused person has made “risk the modelling ideology of organizations, where a good organisation has come to be equated with being a good risk manager” (Myers 2009: 129). The fear of making a bad decision has resulted in the over-reliance of sureties, which allows the courts to offload responsibility for the accused onto ordinary citizens in order to avoid any reputational damage in the event that the accused commits a crime while released (Myers 2009; R. v. Tunney 2018; Webster et al 2009). Sureties provide the courts with an extra level of

41 assurance by subjecting accused persons to more direct supervision than if they were released on their own recognizance or with a bail supervision program (Trotter 2010). To ensure sureties fulfill their legal obligations, the courts hold them financially liable for the accused’s actions. Failure to keep the accused accountable to the rules of the court can result in serious financial consequences for sureties (R. v. Horvath 2009). As such, sureties are expected to operate like quasi-prison guards who report all non-complying behaviour to the authorities.

Due to their legal involvement, sureties, along with the accused, become more susceptible to the court’s rules. Court-ordered conditions therefore seek to responsibilize not only accused but their surety as well. This “governing through crime” allows institutions to ensure “those in positions of ‘responsibility’ for others, including high school principals, corporate executives, and parents” act in accordance with crime control principles (Simon 2007: 21). The home, in particular, has become a site for concern as families are now responsible for preventing and identifying potentially criminal misconduct, such as drug use or violent behaviour, before it occurs. Policies like those in the U.S. that restrict social housing if a family member has been convicted of a felony drug offense compel parents to “invest heavily in disciplinary technologies and knowledge” (Simon 2007: 201). Requiring accused persons to have a surety also provides an additional mechanism with which to control other people in the accused’s life (Schumann 2018). This has enabled the penal state to increase the level of control it has in the private sphere. Surety releases provide a similar opportunity to govern through crime. As Schumann (2018) reveals, Crowns often blame proposed sureties for their inability to prevent the accused’s alleged criminal behaviour and portray them as being a “bad” parent or friend. Transforming family, friends, and employers into civilian jailers means they must also conduct themselves in accordance to court demands. In addition to providing near constant supervision of the accused, sureties are also often expected to modify their daily routines to accommodate the accused person’s release plan. This can mean ridding the home of all alcohol, putting locks on doors and cabinets, cancelling vacations, and minimizing contact with other family members. Crowns and Justices of the Peace routinely praise sureties willing to make these types of arrangements as being not just a good surety but also a good friend/parent (Schumann 2018).

3.2 Complicating the Web of Control: Assuming the Power to Punish The overall involvement of sureties in controlling accused individuals has seemingly allowed for the expansion of penal boundaries beyond traditional methods of confinement. Foucault (1977) discussed the diffusion of carceral power at length in Discipline and Punish where he argued that the practices used within the prison to manage prisoners had become embedded within the broader structures of the social world, resulting in a carceral archipelago. Miller (2014) refers to a similar, though more direct, diffusion of penal power as the Carceral Devolution, whereby the state offloads responsibility to rehabilitate prisoners onto community organizations. Kaufman, Kaiser, and Rumpf (2018) also draw attention to the various ways penal power reaches beyond carceral confinement and punishment through interventionist, covert, and negligent control modalities. This research though helpful in capturing how punishment continues to expand beyond prison walls is limited in that the power to punish and control remains centralized in the hands of the state. In other words, the penal states acts through non-state actors in order to increase their ability to punish and control. Although Kaufman, Kaiser, and Rumpf (2018) acknowledge the role of both state and non-governmental agents, they too position control as remaining within the purview of the penal state. Despite the involvement of non-state agents in broader control agendas, they have been mostly delegated to an ancillary role.

Theoretically, surety releases do allow the courts to widen their net of control by offloading responsibility for the accused onto friends and family. As noted previously, the courts tend to approach bail from a strictly control perspective – that is, any potential risks the accused poses must be contained and controlled via conditions. Yet, by offloading responsibility for the accused onto friends and family, the courts open the door – perhaps inadvertently - for more input from sureties about how to best manage the accused. While sureties are not always called to the stand during a bail hearing, they have ample opportunity to provide input about the accused and potential conditions during their informal conversations with defense counsel and their pre-hearing interview with the Crown.11Assessing the extent to which sureties inform bail

11 In an effort to expedite bail hearings, sureties are typically pre-screened by a Crown bail vettor in order to minimize in court resources calling sureties to the stand. In the jurisdiction where I collected the data, most consent releases hearings excluded formal surety testimony. In some cases, however, Justices of the peace and Crowns still

43 outcomes contributes to theoretical conversations about the relationship state and non-state agents have in shaping punishment and control agendas. Indeed, research on community organizations seems to indicate that the diffusal of penal power to non-state agents has impacted the way we punish, at times moving it beyond official policy (Kaufman 2015). For example, Hannah-Moffat and Maurutto (2012) find through their research on specialized bail courts that rather than acting purely on behalf of the state, “local communities are shaping punishment in distinctive and innovative ways” (Hannah-Moffat and Maurutto 2012: 212). By providing “expert knowledge” on treatment options and availability, community agencies “play a direct role in reframing how offenders are governed” by influencing “how offenders and their behaviours are perceived, assessed and managed” (Ibid 213). Using Deleuze’s and Guattari’s (1998) concept of assemblages as their theoretical frame, Hannah-Moffat and Maurutto (2012) re-imagine governance and control as a reciprocal relationship that allows for the exchangeability of knowledge and power within and amongst different entities.

While the responsibility bestowed upon non-state agents to manage criminalized people in the community expands the state’s level of control, it also transfers power to non-state agents that could shape how punishment is administered and ultimately experienced. Punishment is the site of constant struggle as it morphs and expands within the context of daily life (Goodman, Page, and Phelps 2017). Therefore, knowing what motivates friends and family to assume the role of surety is the first step in understanding their contributions to the assemblage of control in accuseds’ lives. Being surety puts people at added risk of future legal litigation and can create strain on relationships, which questions why people come forward at all. Indeed, studies on the repercussive effects of prison on families tend to position incarceration as being a disruptive force that results in family disintegration and social ostracism (see for example Kaiser 2016; Philips and Lindsay 2011). Yet, it is possible that friends and family might consider the act of being surety as having some practical benefits. Not only does coming forward provide the accused with a better chance of securing bail, it may also provide sureties with an opportunity to address contributing factors, such as addictions or mental health. The costs and benefits of criminal justice intervention has been described as resulting in an ambivalent view towards

asked sureties questions during a bail hearing but this was usually informal. Contested hearings still required sureties to take the stand, which involved extensive questioning by the Crown, defense, and JP.

44 prison (Comfort 2008). For the wives and girlfriends of male prisoners, Comfort (2008) finds that although the institution controls their lives and takes their men away, it also gives them more control in their relationships, allowing them to shape their men into better partners. Families of offenders similarly view prison as representing a catalyst for change (Cecil et al 2008; Tasca, Mulvey, and Rodrigues 2016). Although having a loved one in prison creates financial and emotional strain, families are optimistic that being in prison will allow an offender to focus on self-improvement such as getting sober (Christian and Kennedy 2011). Friends and family of accused individuals may also see bail as a way to shape the direction of the accused’s life, which could subsequently influence not only their involvement in bail negotiations and the types of conditions they recommend but also the extent to which they assume the role of surety outside of the courtroom (Chapters 4 and 5).

The remainder of this chapter looks at the process of becoming a surety. Although sureties allow the court to govern the accused person’s life in areas that were previously inaccessible (Schumann 2018), why someone agrees to be a surety, despite the associated responsibilities and consequences, remains unknown. If penal governance is to be conceptualized as an “assemblage of control” then we must identify the motives and drives of non-state actors in shaping how control is defined in the lives of criminally suspect individuals. When friends and family become quasi-jailers the default position is to assume they have minimal power to dictate release options for their loved ones. Accompanying family, friends, significant others and employers as they become sureties provides rich detail into the relationship that exists between state and non-state actors. The diffusion of responsibility that characterizes surety releases also results in a diffusion of power that defines the lives of accused individuals. Penal control is very much the cumulative product of the exchange of power between state and non-state agents that occurs immediately before and during a bail hearing.

3.3 Findings

3.3.1 Reasons for Becoming a Surety

Understanding why people become sureties provides insight into how they approach the role, informing subsequent analyses about their involvement in shaping bail-related decisions. A sense of obligation, feeling pressure, and maintaining the accused’s innocence all motivated families and friends to come forward as surety. Further, almost all sureties expressed at least some desire

45 to use their power as a surety to encourage a change in the accused’s behaviour. As the next section shows, the belief that being a surety would help steer the accused back on track compelled many friends and family to request conditions they believed would transform the accused from law-breaker to law-abider.

3.3.1.1 Obligation

Familial and friendship ties were among the most commonly reported reasons for becoming surety. The sense of duty sureties felt to assist the accused was often characterized as being an extension of their role as a family member or friend. For example, when Josephine’s son Mikey was arrested for causing property damage, she did not think twice before agreeing to be his surety. In her view, being a surety is “my responsibility because I’m his mom. It’s my responsibility to stand there.” Debbie similarly felt the need to come forward as a surety when her nephew’s previous surety revoked, disclosing that “he [the accused] didn’t ask [us to be surety], we just offered. He’s family.” When asked what made her decide to become surety for her son George, Shirley likewise stated that “I’m his mother of course I would be his surety.” The emphasis on “family” came up frequently in my interviews with potential sureties. According to Mohammed, the reason he was prepared to be a surety, despite his brother’s assault charge, was that “blood is thicker than water.” For Mohammad, along with other potential sureties, families had an obligation to help each other out in times of need, regardless of the circumstances.

The responsibility sureties felt for supporting the accused meant that many were prepared to do whatever it took to get the accused out of custody. Despite being a “good kid,” Kathy’s son Joe began using drugs and engaging in petty theft after his older brother committed suicide. When Joe was arrested on drug charges, Kathy offered herself as surety because, as she tearfully explained, “I would do anything for my sons, anything.” In another example, sister Hasdeep postponed her wedding to deal with her brother’s pending legal case, saying that “family comes first, fiancé comes second.” The willingness some individuals showed towards helping the accused further highlights the importance of familial and friendship ties in explaining why many sureties come forward. As the next chapter shows, the commitment sureties have towards the accused is also influential in shaping their decisions to enforce the rules of the court.

The sense of obligation some individuals felt to be surety increased if they believed the accused had limited social support. After AJ threatened his neighbour with a chainsaw, friend Randy proposed himself as a surety despite his admitted nervousness about being involved in a criminal case. He explained, “he’s my friend, I want to help him and he has no one else to take that role, no family. He’s been living on his own since he was 16 years old. His girlfriend dumped him and he’s been having a hard time.” Accused Steve’s girlfriend Alehandra also felt that she had no choice but to come forward. She told me that Steve had no one else to be a surety since “he grew up in foster care and his family is not supportive at all.” Mom Allison similarly stated that when she was asked by her son’s lawyer to be a surety she “felt fine about it. I was his only choice.”

While most sureties felt a sense of obligation towards the accused, others expressed wanting to become a surety because of their ties to the accused’s loved ones. This is not all that different from families who show an increased commitment to maintaining or rebuilding family bonds during incarceration (Christian, 2005; Maruna and Toch 2005). Through visitations, family members often express the desire to keep the family together, hoping the offender can resolve his/her adversities during incarceration (Cecil et al. 2008). This desire to keep families together also helps to explain why some people wanted to be a surety in order to lessen the collateral effects of the accused’s detainment on other friends and family. For example, Tatiana said that “As soon as I heard he was arrested, I came. I feel bad for his mom. Anything I need, I go to her. We have a loving relationship. I don’t want her to lose her son.” Similarly, Dakota’s boyfriend was charged with breaching probation and dangerous driving. Although they have two young children together and a third on the way, Dakota described their relationship as “alright, it’s there. We used to be closer before all this [before he began getting in trouble with the law].” Nonetheless, when his lawyer asked her to be his surety, she said she “would try for my kids. He will be living with me. He was supposed to before [getting arrested] but he didn’t come home much. My son’s birthday is in 2 weeks and I want him there for that.” In a related example, Judith felt “disappointed about having to be here,” though she too offered herself as surety because as she reasoned “my granddaughter loves him and you do what you need to for family.” For sureties like Tatiana, Dakota, and Judith helping the accused get out of jail was secondary to alleviating the strain their loved ones would feel if the accused remained in custody. Keeping families together thus motivated several people to become surety.

3.3.1.2 Pressure

Many friends and family also felt pressured to become sureties. For some, the pressure to be a surety originated from wanting to be a good parent or friend. For instance, husband and wife Eileen and Wyatt questioned their motives for becoming sureties for the third time, “Are we just doing what we think good parents should do? Or would good parents just leave him in custody?” Others felt the pressure to be a surety from friends and relatives who believed the accused should be released. Jack, who was a co-surety for his son with his sister-in-law Debbie, told me during our follow-up interview that he did not want to be a surety and refused to visit his son in jail. He said: “I didn’t see him in jail, everyone else did. A number of times they told me to go see him and I’d get my back up. They’d say ‘he’s your son, you should go see him.’ So what? Should I go see him and tell him it’s alright? It would send him the wrong message. At the end of the day, he knew how I felt so it didn’t surprise him at all [that I didn’t visit], he knew. Some people thought I was a really bad dad. My family was really upset with me.”

Eventually though, Jack decided to become a surety because in addition to the pressure he experienced from his family, he believed that keeping his son in jail would only make matters worse. Kersen, a 66 year old West Asian father, also admitted that he only conceded to be a surety when his son’s “mother told me to come get him out.” Lydia similarly felt compelled to come forward because her friend Mandy “was going through so many problems finding a surety.” To provide context, I originally met Mandy several weeks earlier when she tried to be a surety for her boyfriend Josh. Although she was hopeful she could get him out, the defense denied her application because of her past criminal record and drug addictions. After two failed attempts to secure a surety in the following weeks, Mandy began offering money to anyone willing to come forward. Nearly a week later, Lydia agreed to become his surety. While I am not certain if Mandy gave Lydia money to be a surety, I do know from a follow-up interview with Lydia that Mandy had promised to help pay for Josh’s living expenses. The possible financial incentive and seeing her friend try and fail to get her boyfriend released likely put pressure on Lydia to be a surety. Like with some other sureties though, this was less for the accused’s benefit than it was for the accused’s loved one.

Family and friends can also be pressured into being surety by the accused. As I sat in the waiting area on a quiet day, I briefly spoke with an accused’s mother and brother. Despite the accused

48 leaving numerous messages and apologizing for his actions, neither were compelled to come forward as sureties because they could not “risk him doing something stupid again.” Other accused persons used more direct methods to try to coerce their loved ones into being sureties. For example, accused Chris withheld property from his girlfriend Sarah, when both she and his mother Cassandra declined being his surety three times. In a final attempt to persuade the women to help him, Chris purposely denied Sarah access to their shared car keys when she went to pick them up at the police station. Sarah and her 2 month old baby (with whom she shares with Chris) had just been released from Sick Kids in Toronto two days earlier and she needed the car to take her newborn to a follow-up appointment. Both Sarah and Cassandra thought that this ploy was to pressure them into becoming sureties which fuelled their requests to have him denied bail. While in both cases the accused’s family declined being surety, they provide examples of the techniques accused persons can use to pressure their loved ones into getting them out of custody.

Similarly, defense lawyers also tried to guilt friends and family into becoming sureties. Christian et al (2006) found that due to budget cuts in state prisons, families of prisoners experience similar pressures to pay for commissaires that help compensate for the reduction in their loved one’s standard of living. Bail likewise shifts penal responsibility onto families for monitoring accused and minimizing costs associated with housing the accused in custody (Myers 2009), which is highlighted by the techniques used by defense lawyers to get their clients released. For example, I observed one lawyer pressure a man who was doubtful about becoming a surety by saying rather forcefully that the accused would not get out otherwise. When the man hesitantly agreed, the lawyer quickly escorted him down to get a police records check without providing any additional information about the role. Another lawyer became very aggressive with a potential surety over the phone in the court hallway, saying if they did not come forward soon the accused would stay in custody. Using custody as a way to encourage sureties to come forward was a common tactic employed by lawyers looking to get their client released.

Considering the goal of the defense lawyer is to secure bail for the accused, this type of behaviour is likely characteristic of “doing business.” However, as discussed in Chapter 7, the lack of legal representation available to sureties means they often do not fully understand what they are signing up for. Sureties swear an oath that they are taking on the role “freely, voluntarily, and without incentive or coercion (directly or indirectly)” (taken directly from the official surety affidavit form),” yet their ability to make this decision soundly is likely

49 diminished if they are made to feel guilty or responsible for the accused remaining in custody. The pressure placed on friends and family to be sureties could foster resentment, negatively effecting the surety’s relationship with the accused and how they experience this process outside the courtroom. Nonetheless, the thought of the accused having to stay in custody prompted several individuals to become sureties and demonstrates why this tactic is likely so effective. According to Margaret, one of the reasons she came forward as surety was “cause it sucks to be in jail and he’s been in there since last Friday.” In addition to helping out the accused’s niece, Trish similarly agreed that she did not “want to see anyone in jail.” In view of the adverse effects of remaining in prison, friends and family felt pressured to be sureties to avoid the guilt of keeping the accused detained perhaps unnecessarily.

3.3.1.3 False/Minor Allegations

Beyond feeling obligated and/or pressured, some sureties came forward because they believed the allegations were minor or untruthful. For example, Shirley agreed to be a surety for the second time for her son William who was back in custody for breaching bail. As part of his original release plan, William was prohibited from possessing or consuming alcohol and could only leave the house for work or in Shirley’s presence. According to the allegations, William failed to comply with the terms of his release when he was videotaped in an LCBO parking lot by his ex-wife carrying a bottle of wine Shirley just purchased. For Shirley, being surety again was a given because in her view, “the allegations are totally false; his ex-wife is ruining his life because he won’t be with her. We just need to get him past this.” Suzanne similarly stated that her son did not belong in jail because the allegations against him were unsubstantiated. She adamantly believed that her son’s oldest daughter was purposely trying to ruin his life because she was jealous of the attention her younger siblings received. While sureties like Shirley and Suzanne came forward because they believed the accused’s innocence, others became sureties because they believed the charges were trivial and warranted release. For instance, when Lydia finally found out that her friend Josh was charged with drug trafficking and the possession of two illegal Percocet pills, she laughed. She could not believe the court would threaten to keep someone in jail for “just a Percocet.” “It’s not even a hard drug,” she said to me and Mandy. How she perceived the severity of the accused’s case helped confirm her decision to help get him bail. The belief that the accused should not remain in custody due to their innocence or the triviality of the allegations was an important factor in some people’s decision to become surety.

3.3.1.4 Reform/Opportunity of Redemption

Often discussed alongside feelings of obligation or pressure was the desire to be a surety to help the accused get his/her life back on track. As Leah so blatantly stated, “I’m not doing it just to get him out but to improve his life. Getting him healthy and on track to living a healthy life. He deserves this and with positive influences I think we can get him there.” For people like Leah being surety provided the accused with the second chance they deserved. In this way, potential sureties commonly described the accused as a good person who fell on bad times or made a wrong decision. Hence, the first step to inspire positive change was to help get the accused out of custody. Sureties routinely identified jail as having harmful effects on the accused’s life. Debbie, for example, explained that in addition to being surety because she was the accused’s aunt, she also wanted “to see him succeed,” which she believed was becoming increasingly impossible to do in jail. She explained, “he has been in custody since April 8th and it’s getting really ridiculous. You’re guilty until proven innocent. His life has been on hold for all this time. His insurance is up and a bunch of things he can’t deal with because he’s in custody.” Once outside of the confines of jail, most family and friends believed being a surety would put them in a better position to motivate the accused to make better life choices. Randy, for example, likened a surety to that of a role model who would lead by example. Tatiana similarly affirmed that “If I’m surety, at least he can be in her [his mom’s] life. He had a bad role model, it’s a shame, he idolized his dad who was in a biker gang. I want him to get back on track. He wants to start a reno business and I will help decorate.” As such, sureties like Randy and Tatiana believed that being an exemplar surety would be enough to help the accused desist from further unlawful behaviour.

However, many took this one step further by discussing the types of conditions they wanted to see imposed on the accused. The conditions often targeted behaviour the surety described as problematic such as “toxic” relationships, addictions, and mental health. Many potential sureties indicated that in order for the accused to avoid further conflict with the law they must be prohibited from speaking to people who influenced law-breaking behaviour. Both Jacki and Kersen requested a condition that would keep their respective sons away from “problem” friends. The request to restrict communication also extended to the accused’s significant other. As Tatiana outlined:

“he has issues with his ex-girlfriend. She’s an informant. If she would rat you out and make you go to jail for her, for god’s sake get her out of your life. I don’t know what the conditions will be but I don’t want him associating with recent criminals, those with pending charges or with warrants.”

Others saw being a surety as an opportunity to help get the accused treatment for their addictions and mental health issues. Alehandra indicated that a “no drugs” condition would give her the ability to properly communicate with her boyfriend because when he’s using “he’s not himself and you can’t talk sense into him, he needs help getting clean. He’s manipulated by chemicals. He’s addicted to meth.” Cheval similarly planned to use her power as surety to get the accused into treatment. When asked what conditions she would like to see imposed, she stated that, “We want him to go to rehab, treatment for 30 days. We recommended this to his lawyer. It’s a no brainer. He has very bad drug addiction issues.” Like Cheval, Johnny also thought that “rehab for drugs would be the best thing” for his friend Helen, who was charged with assaulting her ex- boyfriend and uttering threats. According to him, “she needs to comply [with a no drugs term] otherwise things will get worse for her. She has underlying trauma, drug addiction, and mental health that need fixing.” Zyler believed that in order to actually prevent additional crime, bail must target underlying issues associated with deviant behaviour. He argued that strict conditions like house arrest “don’t help the person. House arrest? What good does that do? Get them to go to AA meetings, treatment, something like that. All his charges are related to alcohol. A curfew is no help, it has nothing to do with anything.” For Zyler, there was a distinct difference between more punitive conditions like curfews and conditions that he felt would actually address the root cause of his brother’s charges. Accordingly, being a surety provided an outlet for family and friends to take control of the accused life by defining and identifying problem behaviour.

The opportunity to be surety appealed to many friends and family who had tried helping the accused through traditional channels (i.e. medical and welfare systems) but were unsuccessful. Having exhausted all their options, Eileen and Wyatt were fed up with the lack of support they received from the medical system, which they believed failed to properly treat their son Caleb for his traumatic brain injury. Melissa and Ryan also expressed frustration that local hospitals refused to treat their brother’s mental health issues because he was an active drug user. For both Eileen and Wyatt and Melissa and Ryan being surety was a last ditch effort to redeem the accused. For others, becoming surety would give them more direct authority and control over the

52 accused’s actions. Emily, for example, believed that being a surety gave her the ability to control her son’s behaviour in a way she felt uncomfortable doing as just his mother. She explained:

“In the past few years his schizophrenia has gotten worse. As his mom, I don’t say anything. His wife, I don’t want to over step her limit. It’s up to his wife to say something, not mine. As his surety now, I can make sure he’s taking his medicine, going to his psychiatrist. I encouraged him to take a course [about dealing with mental health] and I will also be taking a course to help him. I think him moving in will help. My husband is calmer, we don’t yell and scream so he can see what a real household looks like. We keep telling him that if he can walk a straight line, he can at least see his kids.”

By helping the accused “walk a straight line,” family and friends saw that becoming a surety provided them with a unique opportunity to alter the everyday actions of the accused. Indeed, Samantha only became a surety once the accused agreed to abstain from using illegal drugs. “He needed to make life choices,” she told me, “He said he wanted to get better, even though he had to think about it, at first he didn’t want too. He had to agree to this before I would agree [to be surety].” Similarly, repeat surety Darla declined being a surety for her daughter, Sam, for more than a month because of Sam’s inability to get sober on her own. Once Darla and Sam’s probation officer found her a spot at a residential treatment facility, Darla offered to be surety again stating that “I’m only being surety so she can go to treatment. The conditions will be whatever I decide.” For many, the alleged offense was just a symptom of more serious issues. Being sureties provided family and friends with a possible opportunity to address the underlying problems associated with the accused’s criminal misconduct. Sureties like Mohamed insisted that by managing the accused’s behaviour, they were only doing what was “best for my family.”

Not all sureties shared a similar desire to control the accused through rules and conditions. For sureties who were more suspicious of the criminal justice system, doing what was best for the accused often meant doing nothing at all. In this way, being surety allowed some friends and family to mitigate the consequences of the court imposing too many conditions. Reflecting on his own experiences on bail, dad Theo believed that “the less conditions the better. They put conditions on me and I made a point to break them. They’re not helpful at all.” As such, he said he would not “go out of my way” to impose any of the court’s conditions and would likely not phone the police if his son failed to comply. Others believed that they would be able to alleviate unfair court-ordered conditions that might needlessly lead to a breach. Margaret, for example,

53 secretly refused to enforce the court’s no-contact order between the accused Dan and his girlfriend Lily. As she reasoned “they want to be together, it would make life simpler and it’s not helpful because it makes it hard to come to a resolution. I want to help them, I’m Christian, and I want them to be saved by me. They do devotions together, pray – I’m helping them get back on track.” By lessening the conditions imposed, Margaret thought Dan would be more willing to become a more virtuous person. Because sureties are responsible for enforcing court-ordered conditions, people like Theo and Margaret were encouraged to come forward in order to minimize the ill-effects they thought these kinds of conditions would have on the accused.

3.3.2 Influence on Court Outcomes

Outlining the motivating factors that directed friends and family to become surety provides a basis for understanding how they initially approached their role and affected the bail proceedings. This subsection indicates the role sureties play in crafting the net of control that ultimately restricts the lives of accused individuals. Sureties have complex relationships to penal agents that complicate artificial bifurcations between reform and control modalities. Rather than act as dupes or pawns of the court, sureties were active contributors in the final release plan that the court imposed on accused. Prospective sureties directly and indirectly influenced the types of conditions imposed on the accused by requesting specific conditions and providing the court with additional information about the accused’s life. In some cases, JPs sought advice and approval from sureties prior to imposing specific conditions.

3.3.2.1 Indirect Influence

The reasons for becoming surety often informed how potential sureties inserted themselves into the case. Indirectly, friends and family divulged personal details about the accused that went beyond what was included in the allegations. Both Sarah and Cassandra denied being Chris’s surety and attended court to prevent Chris from being released. In doing so, they spoke openly with both the Crown and defense about Chris’s addiction to prescription medication in the hopes that he would be denied bail. Despite Chris’s adamant denial of this during the bail hearing, his defense lawyer still proposed a plan that would include residing at a local shelter until the local bail supervision program could find him a spot at a residential drug treatment facility as well as attending drug programming. Citing R. v. Antic (2017), the presiding Justice of the Peace struck down the treatment condition and instead encouraged the accused to attend on his own. Still,

Chris was ordered to attend and complete any drug assessment as ordered by his bail supervisor. Even though Chris was released, the information Sarah and Cassandra provided to the defense shaped both the direction and outcome of the case, possibly leading to a more restrictive release than if they remained silent. Counter to Chris’s testimony, the defense, Crown, and JP proceeded as if he had an addiction. While neither Sarah nor Cassandra were sureties, cases like this demonstrate the role families play in providing the court with new information about the accused’s behaviour and the resulting conditions imposed to control it.

3.3.2.2 Direct Influence

In addition to providing details about the accused, sureties also had a more direct effect on release decisions by requesting specific conditions. The initial desire of friends and family to see the accused out of custody and focused on self-improvement also prompted them to recommend specific conditions that addressed behaviour they deemed problematic. Sarah, for example, only became surety in order to help the accused get sober. During her examination on the stand, Samantha demanded her friend receive conditions that not only prevented his use of drugs, alcohol, and weapons but also required him to attend treatment for his drug addiction. Samantha’s determination to address the accused’s addictions ultimately led to the Crown consenting to Kendrick’s release, despite Samantha’s own criminal record and history with drugs. In addition to eight other conditions including house arrest and travel restrictions, Kendrick was also restricted from possessing or consuming any illegal drugs and having any drug paraphernalia and weapons. In keeping with her plan to help her friend get “more focused on being creative and involved with my business,” Tabatha proposed a 24 hour arrest so he would “be by my side 24/7.” While on the stand, Tabatha not only made this request clear, she also denied that Cooper had a problem with drugs despite his charge for possessing fentanyl. While the Crown left the house arrest condition for her to impose, Tabatha’s testimony was important because it influenced the Crown’s decision to not recommend a no drugs term. While examples like these show that surety recommendations are not always accepted, they do indicate the direct effect sureties have on the types of conditions imposed (or not). Even in cases where the courts neglect to take stock of surety demands, the accused remains accountable to the “routine and discipline of the household,” which opens the door for sureties to implement more personalized conditions (more on this below).

The influential power sureties have on judicial decisions is further demonstrated in Leah’s case. Remember Leah intended to be surety not just to get her friend Tyler released but to get him working towards a ‘healthier lifestyle.’ Even though she had already booked him an intake appointment at a day facility nearby, the Crown still contested Tyler’s bail, viewing Leah as well intentioned but ultimately lacking a strong plan for release. On break and back in the waiting area, Leah expressed her frustration with the Crown calling her a “real fucking cunt.” Contrary to the Crown’s position, the JP eventually ruled to grant Tyler bail, imposing nine conditions, including a condition to remain in his residence 24 hours a day except in the direct presence of his surety or in a treatment program as directed by the surety. While this condition did not specifically mandate Tyler to get treatment, it did allow for him to attend without Leah present. Further, Leah’s testimony about Tyler’s drug addiction also likely prompted the JP to restrict the accused from using or possessing drugs or drug paraphernalia. Like in Tabatha’s case, Leah’s concerns about wanting to deal with Tyler’s drug habits fuelled her requests, ultimately influencing the imposition of these types of conditions. Interestingly, after the hearing, Leah told me that she would not impose the no contact order ruled between Tyler and his girlfriend because she felt it had no direct connection to his case and that it was unfair to keep family apart, even though his girlfriend was the complainant.

3.3.2.3 Deferring to Sureties

In some cases, it appeared that the court tried to include sureties in the crafting of release conditions. JPs commonly asked potential sureties their thoughts on what conditions would be helpful in managing the accused. For example, the JP asked parents Angelica and Miguel if imposing a house arrest condition would assist in controlling the accused’s behaviour. Admittedly, both parents thought that house arrest was too extreme but that a simple 11pm-7am curfew would suffice. Based on their input, the JP dropped the house arrest down to a curfew. The propensity of deferring to sureties in the final decision appears to have lessened following R. v. Antic (2017). Though the court continued to welcome input from sureties, they were less disposed to impose conditions that modified the accused’s behaviour, like treatment or counselling conditions.

For sureties like Kathy, having the court impose a treatment condition was an important step in rectifying potentially criminal behaviour. Past attempts to get her son to attend treatment for his

56 addiction had been unsuccessful so she was hopeful that a court mandated condition would finally force her son to get clean. When the defense proposed this as a potential condition, the Justice of the Peace denied it because it fell outside the legal mandate of bail. Although Kathy was relieved her son was released, she felt she did not have the authority to get him to go to treatment without a court order. In another example, Debbie and Jack also wanted to see their nephew and son attend treatment for anger management. Of all the conditions, they thought this one held the most promise in turning Dhillon’s life around. Like in the case of Kathy’s son, however, the Justice of the Peace denied formally imposing this condition, telling Debbie and Jack that as sureties, they could impose this if they so desired. While JPs were reluctant to require the accused to comply with behaviour modifying conditions, they inadvertently encouraged sureties to impose them as part of “the routine and discipline of the household.” Although sureties can breach an accused for failing to comply with this order, some sureties believed that it lacked the level of authority that came with a legally mandated condition. Indeed, both Debbie and Jack agreed they “lost the leverage needed” to help get the accused back on track when the JP did not require the accused to attend anger management.

3.4 Discussion

Like a probation or parole officer, sureties have the legal authority to send an accused back to custody for failing to comply with their bail terms. This has led some to argue that surety releases simply allow the courts to increase its level of surveillance over legally innocent individuals (Myers 2019; Schumann 2018). While the next chapter discusses the extent to which sureties actually enforce court-ordered conditions, the current chapter considers the reasons that compel friends and family to come forward to begin with and their subsequent influence on the types of release conditions accused receive. Identifying these factors provides insight into how potential sureties initially understand and approach the role itself and how they come to modify the conditions of bail. Reasons for becoming surety paralleled reasons identified in the extant literature about the continued visitations and support for incarcerated individuals. Overall, there was a strong pattern of wanting to preserve and protect ties with the accused or their loved ones by becoming surety.

Most sureties were acutely aware of the poor living conditions in custody, which puts into perspective why so many people reiterated the importance of helping the accused get their life

57 back on track. Becoming a surety appealed to family and friends because they felt like they would have more access to and control over the accused’s day-to-day life, challenging prior research that presumes penal intervention is always disruptive. Indeed, several people seemed to embrace their new potential role, stating one of the benefits to being a surety was having the accused reside with them, which would provide for more direct levels of supervision. Having the legal power to monitor the behaviour of the accused and enforce specific conditions related to treatment and drug use was appealing to many friends and family who had already exhausted all other options for helping the accused. Discouraging behaviour they associated with law-breaking meant proposed sureties felt they were better positioned to prevent the accused from going back to jail, often prompting them to recommend specific conditions.

Not wanting to see their loved ones in custody, families and friends used the process of becoming sureties to their advantage. By disclosing personal information about the accused and recommending conditions, proposed sureties sought to modify the accused’s life in accordance with their own beliefs of what the accused’s life should look like. Mental health, addictions, and troubled relationships were all commonly identified by potential sureties as triggering criminal behaviour. Some, therefore, used the process of becoming a surety to pressure the accused to make lifestyle changes by not coming forward. In doing so, several potential sureties leveraged the prospect of staying in jail to influence change in the accused’s behaviour. Thus, in exchange for getting the accused out of custody, many sureties expected the accused to get clean, find employment, and take on more parenting responsibilities.

Preventing the accused from ending up back in custody is a goal shared by both the criminal justice system and proposed sureties. Remember, the purpose of bail is to prevent an accused from absconding, reoffending, or interfering with the administration of justice. However, for sureties, bail was viewed more as an opportunity for redemption, highlighting why many friends and family come forward in the first place. Although accused are only just charged with an offense at the bail stage, family and friends saw the criminal charges as symptoms of systemic issues that they had been dealing with for many years. After failed attempts at getting the accused to go to treatment for mental health, anger, and addictions, court ordered conditions were viewed by some as a saving grace, especially because they had the authority to enforce those conditions. Families of offenders similarly characterized incarceration as being a positive motivator for change in the offender’s life and often used family visits to relay messages of

58 reform (Christian and Kennedy 2011; Tasca, Mulvey, and Rodrigues 2016). Indeed, visitations have been found to have an air of optimism as families described having improved relations with prisoners who were now clean, expressed remorse for prior wrongdoings and promised to change (Tasca, Mulvey, and Rodrigues 2016). The “coerced sobriety” that takes place in prison is commonly viewed by families as a sign that the criminal justice system is offender-focused (Christian and Kennedy 2011). However, in lieu of actual institutional treatment and programming, the punitive aspects of imprisonment are disguised. According to Comfort (2008) this is simply a form of “imaginary rehabilitation.” Proposed sureties may also experience false hope that bail will facilitate a turning point in the accused’s life. Like with visitations, there is an air of optimism among family and friends who see bail as a last resort in identifying and treating underlying issues like mental health and addictions by imposing court ordered conditions.

The level of involvement that sureties have at this stage in the bail process is contrary to past theorizations that depict them as extensions of the court. The overuse of conditions has been largely attributed to risk aversion, whereby the courts impose numerous and restrictive conditions in order to protect their own reputation (Myers 2017; Webster et al. 2009). In light of a court culture that prioritizes risk management, courts use surety releases to further control the actions and behaviours of the accused in the community (Schumann 2018). Current depictions of sureties as civilian jailers ignores the distinct ways that they shaped both the trajectory and outcome of bail proceedings. By providing specific knowledge about the accused and recommending specific conditions, sureties helped inform release decisions. Courts appeared to be quite receptive to the demands of sureties and tried to incorporate these requests into the final bail plan when possible.12 Even when the court did not impose a recommended condition, they did offer support by recommending the accused abide by the routine and discipline of the surety’s household. As discussed above, sureties were likely to request conditions that they believed targeted and modified problematic behaviour, which often coincided with their

12 Providing an accurate count of the number of times the courts followed surety recommendations is difficult to attain and is thus not presented here. While sureties have an important role in hearings where they take the stand, many others have minimum input during the course of the actual hearing. This is not to say these sureties have no role in shaping bail outcomes, however, since they frequently volunteer specific information about the accused during their pre-hearing meetings with the defense and Crown. On one lawyer’s surety intake form, one of the questions explicitly asks sureties to list any conditions they would like to see imposed on the accused.

59 reasonings for becoming surety in the first place. The frequency in which sureties requested or recommended these types of conditions is something that has not been explored in past research. Despite acknowledging the involvement of non-state agents in governing criminalized individuals, scholars often overlook the work they do in casting the web of control in the first place. Thus, when it comes to surety releases, it is possible that the imposition of certain types of conditions result less from the court’s objective to control the accused’s behaviour than the surety’s desire to reform it.

This has important implications for how we theorize about the control of criminally suspect individuals because it shows how certain behaviour is being problematized and treated not by the courts but by the accused’s family. Friends and family must be viewed as having an important role in shaping how punishment unfolds in the lives of accused. As Goodman, Page, and Phelps (2017) argue, punishment agendas naturally shift due to on the ground struggles between criminal justice involved individuals who are vying for penal control. These struggles inform differences between the law on the books versus the law in practice. This is not to say that the courts relinquish all of their power as the involvement of the accused’s friends and family gives the court the opportunity to glean more personal information about the accused. Many sureties were willing to share details about the accused’s life in the hopes that the court would find a suitable solution. While this sometimes came from a place of frustration with the accused, many acted in what they believed was in the accused’s best interests. Members of the court also commonly asked sureties if the accused used drug, had anger issues, or was a good parent, which helped identify new risk categories (Ewald, 1991; Rose 2000). Using this knowledge enabled the court to control the accused through preventive techniques that targeted certain behaviours and controlled undesirable outcomes before they occurred. As such, the imposition of bail conditions must be seen as the result of the reciprocal relationship between sureties and the courts. As with the community agents in Hannah-Moffat’s and Maurutto’s (2012) study on specialized bail courts, the findings here challenge us to view sureties not just as “pawns” of the court, but as active participants in a dialogue of exchange about the functioning of conditions in the context of the accused lives.

For some friends and family, failed attempts at getting the accused help in the past via medical intervention, counselling, and addictions therapy led to a belief that the criminal justice system would help pick up the slack. With other options exhausted, bail became an important avenue to

60 rehabilitate accuseds whose lives were taking a far different turn then their loved ones wanted. Legally, however, the mandate of bail runs counter to this goal. While sureties believe that bail should target underlying behaviour, legal and academic scholars see this as eroding presumptions of innocence (Myers 2017; Trotter 2010). According to sec 515 (10) of the Criminal Code, conditions are only meant to mitigate concerns that the accused will abscond, reoffend, or interfere with the administration of justice. Upper court decisions in R. v. Antic (2017), and later R. v. Tunney (2018) compel JPs to use restraint when imposing conditions, especially conditions that target certain behavior and further marginalized vulnerable populations. The new Crown Policy Manual (MAG 2017b) also cautions Crowns from imposing these types of conditions except in cases where they adhere closely to the allegations. According to the Manual, for example, a “no alcohol” condition should only be requested if it is connected to the alleged offense. Where a connection exists, consideration must be given to crafting the least restrictive bail conditions that still meet public safety concerns, such as no drinking outside your residence as opposed to a complete ban on alcohol consumption or possession. As observed during bail hearings, JPs indeed appear less inclined to formally impose these kinds of conditions. This is also in keeping with Schumann and Yule (unpublished), who found a significant decline in the use of treatment and drug-related conditions post-Antic. Despite the court’s reservation in mandating conditions, they frequently encouraged sureties to impose them as part of the “routine and discipline” of the household. This can be a sobering reminder for some sureties that rehabilitation is not one of the main goals of the criminal justice system. Indeed, as will be discussed in Chapter 7, the lack of support families and friends receive from members of criminal justice system while the accused is released further solidifies their divergent aims, sometimes negatively affecting how some sureties come to view the system on a whole.

3.5 Conclusion

Considerable research has documented the different ways the penal state has expanded beyond imprisonment. As non-state agents, including families, become more responsible for carrying out these crime control functions, it becomes important to understand how they shape criminal justice processes. The feedback friends and family provide about the accused both before and during a bail hearing demonstrates their ability to modify bail outcomes based on their own objectives. While many came forward due to a sense of obligation, pressure, and belief that the allegations were misguided, there was also an underlying desire among most potential sureties to

61 help the accused become more law-abiding. Frustration at the lack of social assistance and failed attempts to “treat” the accused in the past meant several sureties saw this as a chance to make a difference in the accused’s life. Thus, the interplay of traditional notions of crime prevention and the desire to reform coalesced to create distinct bail conditions for accused individuals. While recent decisions like R. v. Antic (2017) and R. v. Tunney (2018) have further pushed bail away from rehabilitation, sureties remain an important feature in decisions on appropriate conditions. Their role in bail proceedings further prompts us to rethink what the purposes of bail should be and if the involvement of friends and family at this stage threatens or upholds constitutional rights to reasonable bail. Building on this, the next chapter questions how family and friends enforce the rules of the court and act on their role as a surety outside of the confines of the courthouse.

Chapter 4 Assuming and Resisting the Role of Surety: Control vs. Care- Oriented Enforcement Strategies Introduction

Surety releases allow the courts to push crime control responsibilities onto the family and friends of people accused of a crime. As sureties, friends and family are expected to assume the role of a civilian jailer who is legally responsible for enforcing court ordered conditions of accused individuals. If an accused is reported to the police by their surety, the accused is placed back in custody with additional charges. In this way, the state reconceptualizes crime prevention as being within the purview of the accused’s friends and family. The legal powers bestowed upon sureties provide the penal state with new avenues for control that move beyond what is possible with traditional methods of confinement (Myers 2019; Schumann 2018). With this, the “carceral archipelago” (Foucault 1995: 298; Miller 2014) becomes even further diffused throughout the social body, as ordinary citizens seemingly become absorbed into the penal state. As penal boundaries continue to extend into the lives of accused individuals vis a vis surety releases, it is possible that their friends and family undergo a transformation similar to Clemmer’s (1958) prisonization whereby prisoners’ attitudes and personalities change as a result of being emersed in “the folkways, mores, customs, and general culture of the penitentiary.” Yet rather than experience prisonization as a prisoner, friends and family of accused are subjected to the expectations, practices, and conventions of the courts by becoming surety. Indeed, early research on the devolution of state responsibility for the re-entry of prisoners onto community agents suggests that NGOs rarely divulge from state directions. While Miller (2014: 307) describes the involvement of state and non-state actors in the re-entry process as being interactive, he ultimately argues that “the ascendance and proliferation of prisoner reentry exhibits an enduring collusion between punishment and social welfare actors and demonstrates one way that the state has been reconfigured to manage populations at the margins.”

Though friends and family like NGOs become proxies of the state by virtue of their role, if we are to conceptualize them as being part of an “assemblage of control” (Hannah-Moffat and Maurutto 2012) as introduced in Chapter 3 then we must assess the extent to which sureties align with court demands when enforcing bail conditions in the community. According to Kaufman

(2015), many non-state organizations approach the supervision of former prisoners with their own objectives that sometimes run counter to state goals, resulting in practices that diverge from the interests of the state. As outlined in the previous chapter, sureties similarly approach their role in ways that can depart from legal norms. Building on this, the current chapter seeks to not only understand the ways sureties assume, resist, and incorporate court directives when enforcing conditions but also identify any potential factors that may facilitate or hinder the fulfilment of court demands. The results of this chapter provide insight into the role friends and family play in mediating the relationship between the accused and the courts in the community and the subsequent impacts this has on how bail is experienced by the accused.

Follow-up interviews with 36 sureties and observation notes from one year in estreat court13 reveal that being a surety is a deeply transformative process as families and friends report taking on the roles of a babysitter and jailer, among others. Almost all acknowledged the nearly impossible task of providing the level of supervision required by the courts, citing difficulties related to the accused’s desire to change, personal circumstances, familial bonds, and lack of training. Nonetheless, many sureties employed an array of techniques that both aligned with and diverged from court directives, as they often oscillated between control and accused-focused strategies. The legal demand to prevent bail breaches meant friends and family had to constantly weigh the potential financial consequences of their decisions with the intangible costs of sending the accused back to jail. These considerations subsequently shaped how sureties interpreted their role, ultimately creating a dissonance between the legal rhetoric of bail and the lived reality of it.

4.1 Court Expectations and the Legal Role of Sureties

The results of Chapter 3 challenge theoretical conceptions of the penal state as operating through rather than alongside community and non-state agents. The hope that bail would act as a turning point in the accused’s life encouraged many sureties to request specific conditions related to drug and alcohol usage, counselling or medical treatment, no contact orders, and curfews. The

13 If an accused fails to comply with their recognizance or is charged with a new substantive offense while on bail the Crown may pursue estreatment. Estreat court, or estreatment, refers to the process by which the Crown seeks to obtain the original bail amount from the surety and/or accused.

64 information they provided to the court often influenced how these proceedings unfolded and ultimately the types of conditions accused persons received. Once the accused is released into the community, however, a surety’s only task is to ensure the accused follows the directives of the court, does not reoffend while on bail, and attends all court dates (Criminal Code and judicial precedent: see AG v. Horvath 2009; R. v. Antic 2017; R. v. Tunney 2018). Because the courts assume the accused will breach if left unattended, friends and family are mandated to supervise the accused at all times. Offloading responsibility for the accused onto sureties allows the courts to mitigate reputational risk and shift blame for any potential wrongdoings (Myers 2009; Webster et al 2009). While upper court rulings in R. v. Antic (2017) and R. v. Tunney (2018) criticized the over-reliance on surety releases, to date very little research has documented how these decisions have impacted bail directives.

Observations of bail court hearings show that sureties are being used less often post-Antic (Schumann and Yule unpublished), yet court expectations about how sureties supervise the accused remain virtually unchanged. Schumann (2018) indicates that the courts expect sureties to provide near constant community supervision, often viewing unemployed or retired individuals as ideal candidates. Even in cases where the accused does not require a curfew or house arrest, Crowns’ regard sureties who have full-time employment or parenting responsibilities unfavourably due to concerns about supervision. By becoming surety, friends and family are expected to prioritize their role as surety over their existing relationship with the accused (Schumann 2018). Indeed, all sureties make a promise to the court, both verbal and written, that they are “responsible to the court to ensure the accused person will until the charges against him or her are disposed of; come to court and obey all the conditions of bail.”14 If the accused fails to appear in court or breaches a term of the release, all sureties agree to “immediately report this to the police” or “pay the full amount of bail” even if they “have supervised the person to the best of my ability.” Agreeing to this clause simultaneously gives sureties the authority to breach the accused while stripping them of any discretionary power to determine what that breach looks like. Although sureties can revoke their position at any time, this too sends the accused back to custody until the court can approve of another surety.

14 This is a direct quote taken from the affidavit a person signs upon becoming surety.

Despite having minimal discretion to report breaches, sureties are afforded some flexibility in how they supervise the accused. In addition to court imposed conditions, accused released with a residential surety must also follow the ‘routine and discipline’ of their surety’s household. Not only does this condition further prompt the accused to abide by their surety’s instructions, it also gives sureties added power to enact their own rules. Since R. v. Antic (2017), there is some indication that justices of the peace (JPs) are relying more heavily on sureties to craft specific terms under this condition. While conditions such as curfews and treatment were more commonly required pre-Antic (Schumann 2018; Schumann and Yule unpublished), these conditions are inappropriate under the legal mandate of bail because they modify the behaviour of the accused (R. v. Antic 2017; Crown Policy Manual 2018). Thus, rather than formally impose these types of conditions, JPs and Crowns are now directing sureties to implement them as part of the “routine and discipline” of the household (Schumann and Yule unpublished). As Chapter 3 suggests, this may put increasingly more pressure on sureties to come up with their own conditions without having the ‘official’ approval of the court, making their job more challenging without loosening court demands. Alternatively, it may give friends and family more freedom to impose and enforce conditions that align with their own goals of becoming surety (see previous chapter).

4.2 Controlling Crime through Community Supervision and the Secondary Prisonization of Sureties

Community supervision has become a popular penal tool in recent decades as it extends the formal control of offenders outside institutional boundaries (Carson and Golinelli 2013; Phelps 2013). The state’s capacity to supervise prisoners has primarily been offloaded onto community actors and organizations who now bare the brunt of this work (Miller 2014). While the penal state has become less concerned about knowing and disciplining offenders (or accused, in this case) (Cohen 1985; Feeley and Simon 1992; Garland 2001; Lynch 2001; O’Malley 1996, 1998), scholars argue that state sanctioned re-socialization has actually expanded under state- community partnerships (Gowan and Whetstone 2012; Miller 2014). Gowan and Whetstone (2012: 70) refer to this arrangement as “strong-arm rehab,” which they describe as being “a particular type of court-mandated rehabilitation emphasizing long residential stays, high structure, mutual surveillance, and an intense process of character reform.” Though the expanse of strong-arm rehab has “indeed been propelled by cost–benefit calculation and the

66 decentralization of social control” from the state to community organizations, “its minute and constant behavioral modification make it an old-fashioned disciplinary institution par excellence” (Gowan and Whetsone 2012: 87). This shifting of responsibilities is described by Miller (2014: 308) as the ‘Carceral Devolution,’ which he argues is the “transfer of carceral authority – in this case the authority to rehabilitate and supervise prisoners – from federal and state-based institutions to local ones.” Yet he notes a distinct shift in rehabilitative programming ‘post-Carceral Devolution’ that focuses more on moral reformation than penal welfarism. Instead of providing former prisoners with employment opportunities, for example, prisoner-reentry programs teach prisoners ‘soft skills’ like how to be professional and ‘dress to impress’ that do little to help them secure a job (Miller 2014). In this way, rehabilitation has transformed into a “people changing institution” that emphasizes offender responsibility and accountability (Gowan and Whetstone 2012; Miller 2014).

Miller (2014) attributes this shift to the little room re-entry organizations have to develop and implement their own objectives and best practices. Under the constraints of state policy and funding, Miller (2014) finds that NGOs rarely diverge from state directives and goals, which simply creates another avenue for the state to govern mostly poor, racialized individuals (Miller 2014). While community organizations are responsibilized for managing offenders, they remain bound by state policies that seek to increase law-abidingness by imposing sanctions that limits an offender’s freedom, such as ordering more frequent drug tests or threatening to revoke probation or parole (Bolin et al 2019; French and Raven 1959; Gowan and Whetstone 2012; Lynch 2001; Miller 2014). Although “some of the underlying assumptions and beliefs inherent to transformative models of penology, such as traditional rehabilitative ones, seem to persist even in the face of the shifting emphases,” Lynch (2001: 44) finds this does not extend much beyond the rhetoric used in community supervision.

Like other non-state agents (i.e. NGOs), sureties similarly act as an important legal apparatus that allow the courts to increase the level of supervision of the accused in the community and uphold public safety by preventing further conflict with the law (Trotter 2010). Through their role as surety, friends and family are expected to embody certain characteristics and employ specific strategies to ensure accused are compliant. This process is reminiscent of Clemmer’s (1958) prisonization whereby prisoners’ attitudes and personalities change as a result of being emersed in “the folkways, mores, customs, and general culture of the penitentiary.” Yet rather

67 than experience prisonization as a prisoner, friends and family of accused are subjected to the pressures of the courts by becoming surety. Indeed, Comfort (2008) argues that the wives and girlfriends of male prisoners experience diffused pains of imprisonment via secondary prisonization through their experience as both a quasi-inmate and surrogate jailer. Through her ethnographic observations of San Quentin’s visitation room, Comfort (2008) finds that women are regularly subjected to similar forms of institutional scrutiny and rules as their male partners. While most of Comfort’s (2008) study describes the various ways the women’s lives change as they navigate the rules of the prison, she briefly explores how women are prisonized into secondary or surrogate jailers. By visiting their men in prison, women both resisted and assisted correctional authorities “with supervising, restraining, and punishing their partners” (Comfort 2008: 182). By taking advantage of their partner’s position on the inside, women regained control over their relationships and sometimes used this control to shape and manage their lover’s behaviour.

Similar to the wives and girlfriends of male offenders, friends and family of accused individuals likely become “characteristic of the penal community” (Clemmer 1940: 84) through their role as civilian jailer. Unlike Comfort’s sample, however, sureties are directly accountable to the courts for the supervision of accused individuals. In this way, sureties are forced to adapt to the rules and norms of the court or risk financial penalty. The degree to which sureties experience secondary prisonization likely depends on how they interpret and subsequently carry out their role of enforcing court ordered conditions (and as the next chapter discusses, reporting breaches). To date, most research on bail in Canada assumes that because surety releases are legally one of the most onerous forms of release, sureties must be strict rule enforcers by default (CCLA 2014; Myers 2019, 2009; Webster et al 2009). Indeed, sureties are at risk of losing a significant sum of money if the accused is caught breaching so it stands to reason that they would go to great lengths to ensure the accused complies with the conditions of bail. Prior research commenting on the role NGOs play in carrying out punishment and correctional services further suggest the lack of control non-state agents have to stray away from state demands. Extending these findings to surety releases, it is possible that friends and family may be equally inclined to adhere to court demands by incorporating recommended enforcement techniques that favour the extensive monitoring and surveillance of the accused (Miller 2014; Seiter and West 2003). As non-state agents, sureties are bound by explicit court orders to enforce all conditions. Thus, to fulfill their

68 duties, they may coerce good behaviour (Bolin et al 2019; French and Raven 1959) by threatening to revoke bail and leveraging the consequences of non-compliance.

4.3 Surety Releases as an Assemblage of Control

Despite the constraints the courts impose on friends and family, Chapter 3 provides some preliminary evidence that how sureties enforce conditions may be predicated on their own objectives for coming forward. Indeed, Kaufman (2015) indicates that NGO practices are more divergent from state policy than prior work has described. The variation she found in how NGOs conformed with and departed from Wisconcin’s re-entry program lends caution against adopting an overly restrictive view of non-state actors (Kaufman 2015). In fact, evidence from specialized bail courts in Canada demonstrates that community agencies “play a direct role in reframing how offenders are governed” by providing expert knowledge on available treatment options (Hannah- Moffat and Maurutto 2012: 213). By including non-state agencies as part of the “assemblage of control” (Hannah-Moffat and Maurutto 2012) that dictates the lives of criminalized people, researchers are forced to consider how the power and responsibility to control can ebb and flow between state and non-state agents. As such, the guiding presumption that sureties lack the agency to make their own decisions regarding what is best for themselves and the accused may fail to capture the same level of nuance that Kaufman (2015) and Hannah-Moffat and Maurutto (2012) report in their own work on state-community arrangements. In reality, sureties are expected to know intimate details about the accused, which likely influences how they supervise. Cook and Gordon (2012) offer some indication that relationship ties can dictate how parents supervise their offending children. Like sureties, parents of juvenile offenders in the U.S. can receive legal reprimands if their child fails to adhere to court-ordered conditions. Drawing on a convenience sample of 88 parents of juvenile probationers, Cook and Gordon (2012) found that parental anger towards their child’s involvement in crime minimized their tolerance for non- compliant behaviour with parents who felt like they lacked control over their child’s actions being more inclined to hand them over to the criminal justice system (Rose et al 2004). Like Cook’s and Gordon’s (2012) sample, it is possible that the relationship dynamics that exists between sureties and accuseds may affect enforcement strategies in ways that are unique to the surety experience.

In particular, the higher degree of intimacy that defines surety-accused relationships could

69 minimize a surety’s concern to adhere to court expectations. While the offloading of responsibilities for the accused onto friends and family is a distinctive feature of actuarial governance, the inclusion of friends and family could temper the effects of a strictly crime control agenda. The results of Chapter 3 find that many sureties are driven by a desire to motivate positive change in an accused’s life, which may translate into supervisory strategies that are more care oriented than their legal duties advise. Some sureties may therefore focus more on rehabilitation than on total compliance (Lutze 2014). Thus, rather than use coercive strategies as the courts’ advise, sureties may employ enforcement practices that extend curfews or overlook no-contact rules for good behaviour (Bolin et al 2019; French and Raven 1959). Conversely, some friends and family may express an indifference to being surety once the accused is released and avoid their legal duties all together.

4.4 Impacting the Lived Experience of Bail

Assuming the role of surety places friends and family in a unique position where they must consider their love for the accused with their obligations to the court. While prior studies tend to adopt an anti-agenic view of non-state actors, it is important to consider the extent to which friends and family simultaneously align with and deviate from court demands when enforcing conditions. Similar to experiences on probation, it is probable that the techniques sureties use to encourage compliance could have distinct effects on the lived reality of bail. Documenting the success and failure of probationers with a history of mental health, Skeem et al (2007) found that an overtly rehabilitative or care-based approach neglected to have any effect on probationer outcomes while an overtly surveillance-based approach contributed to probationer failure. POs that took a more balanced approach, however, increased their client’s chances of successfully completing their sentence without accumulating new charges. Paparozzi and Gendreau (2005) also note that a blended approach contributed to lower levels of recidivism among clients in their qualitative study on the orientations of twelve POs. Firm but fair approaches have been associated with greater rule compliance and reductions in reoffending overall (Kennealy et al 2012). As such, it stands to reason that exceedingly coercive measures to monitor the accused may be viewed approvingly by the courts but could increase bail breaches while attempts to improve the accused’s life could result in positive changes but put the surety at risk of estreatment if they overlook minor breaches. Even though sureties are viewed as extensions of the court, they undergo no training prior to assuming this role, which could negatively affect

70 their ability to carry out court demands satisfactorily. Because sureties are ordinary citizens, employment, family responsibilities, health and prior social activities could also shape the amount of supervision and support they provide. The remaining chapter proceeds by identifying the challenges sureties experienced fulfilling their promise to the court as well as the strategies used to increase compliant behaviour.

4.5 Findings

4.5.1 Methods of Enforcement

In keeping with their role as a quasi-jailer, sureties relied on numerous tactics to encourage the accused’s compliance. Many of these strategies were consistent with the surety’s legal duty to provide near constant control over the accused’s day-to-day life. The court’s expectation that sureties closely monitor the accused was reflected in techniques that controlled almost every aspect of the accused’s life, including who they associated with, where they went, and what they did. In doing so, several sureties described their home as a carceral space. Abigail and Daniel, for example, referred to their home as a “mini jail.” According to Abigail, “we’re just strict so there’s no problem…We don’t want him to be tempted so we lock our bedroom door and we have our keys and don’t leave anything around that may be tempting…so I guess it’s like a jail.” At the same time, however, many sureties departed from these expectations to provide financial and emotional support with the intention of sparking a turning point in the accused’s life. These techniques were more needs-focused than control-oriented, as they provided accused with access to counselling, treatment, and housing. Although these practices helped encourage positive change, they did not necessarily loosen the control sureties had in the lives of accused individuals. Thus, the interplay that existed between sureties and the courts when it came to supervising the accused highlights the intricate web of control that forms around criminally suspect individuals released on bail.

4.5.1.1 Executing Court Demands: Control-Oriented Strategies

4.5.1.1.1 Surveillance

The most common strategy sureties used to minimize potential violations was to keep the accused under extremely tight surveillance. Simon confirmed that “he [the accused] was with me 24/7, wherever I went he went with me. It was 100% successful.” For Shirley, this level of

71 surveillance was required because her son was under house arrest and could only leave the house if he was with her or going to work. When I asked her to describe what this supervision looked like, she said

“you have to go get gas with him, go to the grocery store, I go to the gym so I wait for him to get home so we can go together. And then going on dates with him, that’s not fun…I try to sit in a seat a couple back from them. They want to go to the market, you walk behind them. They go to dinner by themselves but I have to go with them.”

Although Shirley told me that George was more than willing to comply with his conditions as he spent most of his day at work, she still felt compelled to vigilantly monitor his after-work hours because that was what the court required. Unlike Shirley’s son George, Kersen’s son only had to comply with a curfew (among other conditions) and yet Kersen still insisted that he kept “a follow-up every time Yousef goes to work, what time he leaves and comes home, and when he goes somewhere, I sometimes go with him. I ask when he’ll be home and make sure he stays close to that time.” For Kersen, the curfew was “almost like house arrest.” Hasdeep also made sure her brother was in her care as much as possible. When she went to work, she constantly phoned him and had her mother go check in on him. This made it all the more upsetting when she brought her brother to court for a pre-scheduled hearing and he was arrested for breaching. Knowing she was with her brother at all times led her to believe that “the arrest is bullshit.” Like Hasdeep, many sureties tried to make alternative arrangements if they could not personally supervise the accused. Brooke told me that when she went to work, she would “leave her [accused Brittany] at home with my children to make her stay. I would call all the time or sometimes I would have my boyfriend or our other sister come over to watch her.” Darla also asked her mother or friends to watch over her daughter when she was at work to avoid any missteps while she was away. Despite the difficulties in providing supervision, many sureties took special precautions to ensure the accused was being watched at all times, even if this was not a formal condition imposed by the court. For some sureties, like Genie, supervising the accused transformed them into quasi-guards or prison wardens that blurred the line between home and jail (Comfort 2008).

To further monitor the accused, some sureties took it upon themselves to supervise the accused’s daily phone and internet activity. For example, Abigail’s and Daniel’s son was restricted from accessing and using the internet. To minimize temptation, Abigail and Daniel confiscated his

72 cellphone and locked their computer in a cabinet. Genie physically removed Jenny’s phone to prevent her from breaching by being in contact with her co-accused. When discussing her strategies, Samantha frustratingly lamented “Social media, ugh. I’ve had to take the phone, the computer. He [the accused] just does not listen. I literally had to change all his passwords so he couldn’t access it. I thought it would be a lot easier [to get him to follow his conditions].” Although a court order prohibited Kendrick from accessing all social media platforms, the only way to get him to comply was to completely restrict access to his phone and computer. Darla also prohibited her daughter, Sam, from using her phone. Unlike Kendrick, Sam did not have a related condition that kept her away from her phone yet Darla thought it was necessary to disallow Sam from contacting a “bad” boyfriend. While this eventually led Sam’s relationship to fall apart, Darla vowed that it was “to protect her.”

4.5.1.1.2 Restricting Mobility and Associates

Preventing an accused from contacting someone they were not supposed to was an important goal for many sureties, especially if the accused had a no-contact condition. In addition to taking away all cell phones and computers, some sureties also put geographic barriers between the accused and any potential victims, witnesses, and/or co-accuseds. When I asked Clayton if he imposed any of his own conditions, he replied “no no, no, I just tell him what gets him in trouble. Like he can’t go back there to his ex-girlfriend’s. This has been a challenge keeping him away but I have put him in a different city from her and so far he’s staying away.” Eileen and Wyatt also relocated their son to another city to protect him from the temptation of contacting his ex- girlfriend, whom they described as “a real crack head.” For sureties like Clayton and Eileen and Wyatt, the physical removal of the accused from their usual surroundings helped to prevent any breaches by removing opportunities to get in trouble. It also underscores how sureties allowed their own understandings of what was best for the accused to influence how they supervised and subsequently modified the accused’s actions. Here, we can see how state and surety objectives coincide to control the daily actions of the accused (Miller 2014).

To limit the amount of unstructured time accused had, several sureties also accompanied them on social outings, which is a common technique used by family members to ensure the compliance of probationers (Miller, Copeland, and Sullivan 2015; Vidal and Wooland 2017). On top of any conditions, all accused are released on a promise to appear. To ensure the accused attended court,

73 several sureties went with them to their appearances. I met Clayton in court while he waited for his friend Donovan to deal with his legal matters. He told me, “I took time off work to make sure he’s here today. I picked him up and I’ll drop him off.” Miller complained about how many court dates his friend Albert had. In order to get him to go to court, Miller had to physically wake Albert up “because otherwise he wouldn’t go. It was so annoying. It wasn’t even for me but I had to do it. I got so sick of the court dates.” Camilla had to reschedule an important doctor’s appointment to make sure her friend Jacklyn got to court on time. Rod also drove his friend Dwayne to court “to make sure he gets there.” However unlike Miller both Camilla and Rod reported having an easier time supervising because the accused had limited conditions, full-time employment, and wanted to get their lives back on track. In addition to driving the accused to court, many sureties described having to drive the accused to work and other appointments. Suki said she felt more like a “taxi” because she drove her brother to work every morning at 7:30am. Star would take her ex-boyfriend to “all his court date appearances, probation meetings. And like doctor’s appointments and stuff too because he doesn’t drive.” Johnny also took the time to drive Helen to probation. Recalling the experience, he disclosed “I would take her to probation when she wanted to go and whenever I was able to take her. And she only made it three times and it’s been almost a year. She wouldn’t have even gone those times if I hadn’t taken her.” Indeed, Emily disclosed that she drove her son Jason to the pharmacy and his psychiatrist “because I just wanted to make sure he was going into the door.” Taking the accused to their appointments was a way for sureties to not only control the whereabouts of the accused but to force compliance by minimizing their unstructured time.

4.5.1.1.3 Controlling the Accused’s Health

If the accused had a history of addictions or mental health issues, sureties commonly took charge of the accused’s health by controlling access to medication and requiring drug-testing. According to Myers and Dhillon (2013), the CCLA (2014), and JHSO (2013), having family members control the accused’s health is deeply problematic because they often have minimal knowledge on the best course of care. As a result, these practices do little but increase the level of control the state holds over already marginalized individuals by further criminalizing addictions and mental health needs. Nonetheless, sureties like Pauline regularly monitored the accused’s medication history. For instance, Pauline blamed her son Bradley’s repeated run-ins with the law on his severe mental health problems. When he refused to take his medication, she told me “he

74 won’t talk to me or see me. When he’s not on his meds, he hates me.” Thus, even when she was at work, she called the pharmacy to see if he picked up his medication. When I asked what a day in her life looked like as surety, she stated “I make phone calls to the pharmacy, I text him, chase him down.” Emily employed a similar strategy as Pauline, saying “I was always asking what he was doing, where he was going, to make sure he was staying on the right track. Did he take his meds?” Because her son Jason was schizophrenic, she was always on “high alert that he wouldn’t breach.” As a result, she accompanied him when he picked up his medication from the pharmacy and made dinner sooner so there was less time in between dosages. Using his connections with the local bail supervision program, Simon even went so far as to require his nephew to take weekly drug tests during his meetings with the bail supervisor. For sureties like Simon, ensuring the accused stayed clean was an important part in promoting compliance.

4.5.1.1.4 Leveraging the Consequences of Failure

Sometimes, specific attempts to get the accused to comply were not effective. To persuade the accused to follow court orders, some sureties took a tough love approach by reinforcing the consequences of infractions. Camilla, for example, made sure her friend Jacklyn followed the rules by yelling at her. She exclaimed,

“I try to be blunt and honest with her. I try to let her know don’t be stupid, don’t make bad choices, think about your daughter in the morning. You better be in court or I’ll pull bail. This is not a joke. I put stuff on the line for her and I expect her to follow the terms.”

Samantha described her approach in a similar way. She said “I’ve just got to be a bitch…I just don’t like people taking me for granted…So I have to put my foot down. My grandma taught me about tough love and I’ll be that bitch just to make you succeed.” Like Samantha and Camilla, Johnny also threatened to pull bail in order to get his friend Helen to comply, telling me “I just told her, if you fucking leave, you’re done. Is that what you want? If you’re not coming with me to probation, I’ll let him [the probation officer] know. If you have no interest in bettering yourself, I’m pulling.” According to Simon, ensuring compliance was all about using fear. “I’m not screwing around,” he asserted. “I put up $100, 000 because you want to be an idiot. I put the grab on him a couple times to keep him in check.” For sureties like Simon, the threat of losing the money they promised to the court was a motivator for keeping the accused in line. As will be discussed in the next chapter, the likelihood of breaching or pulling bail increased when the

75 accused failed to live up to their surety’s expectations. In this way, bail may be experienced as a form of strong arm rehab (Gowan and Whetstone 2012) if sureties use their control to leverage compliant behaviour by threatening the consequences of non-compliance.

4.5.1.2 Surety Directed Enforcement: Tangible and Intangible Supports

4.5.1.2.1 Financial Assistance

The strategies sureties used to implement court orders often extended beyond rule-enforcement with many also taking on support-like roles by providing both tangible and intangible resources. Most sureties I interviewed provided at least some form of financial assistance while they were surety. Clayton, for instance, told me “I give him [the accused] everything he needs… I provide him with finances.” When prompted further, he went on to say “money comes and goes but you have to help a friend.” Simon also offered monetary support to his nephew, saying “it was like having another mouth to feed.” Many sureties like Clayton and Simon provided this kind of support because the accused was unemployed or had a limited income. Thus, Emily believed that while she was surety, it was important to show her son how to be financially independent so he could be a better father. When asked about the supports she provided for her son, she stated,

“I was showing him the different things I did with my other grandchildren that were free. Things can be done and it doesn’t have to cost him money. He’s on disability [because of his mental health] but of course he’s so far in debt that we told him to clean up his bills. But we’re not offering him money because he’s not going to learn anything. This was one of his stress levels, was that he didn’t have money for family court…so we broke down now and got him a family lawyer but no bills and everything that’s his responsibility. I also paid for his groceries and the utilities in the house.”

Jack, on the other hand, provided his son with employment while he was surety “to keep his mind from stagnating…it gave him a break [from being under house arrest], he got some money and I got some help. It was a win, win.” Yet even when the accused was employed, some sureties insisted on helping them through the “rough patch.” Rod became surety for his employee Dwayne because he was a hard worker and had a promising future as a painter. Still Rod, like Clayton, allowed Dwayne to live in his house rent free while also paying for most of his groceries. Although Dwayne offered to pay, Rod’s wife refused to accept any financial compensation.

4.5.1.2.2 Counselling

To effect positive change in the accused, some sureties focused on making sure the accused went to counselling even when it was not a court imposed condition. The emphasis on counselling was displayed in the sureties actions of finding the right treatment facility for the accused, bringing the accused to meetings, and/or providing moral support for the accused to attend. Despite her disappointment that the JP rejected a counselling condition, Debbie still encouraged Glenn to attend. “He is going to counselling now,” she disclosed to me, “so we make sure that happens. We talked about it and he made the steps to go. He himself is working to better his situation. He wants to get better so he’s making sure he complies.” Both Jack and Debbie agreed that Glenn’s willingness to change was due to his fear of going back to jail (he spent one month in custody before Debbie and Jack came forward). Darla similarly emphasized the need to get her daughter Sam to attend treatment for her drug addiction. To secure this, Darla “sought out AA” and was “going to CMHA [Canadian Mental Health Association] to see if there are any other resources that can help.” Thus, for sureties of accused with addictions/mental health concerns, providing access to medication, counselling, and treatment was a necessary step to help the accused make meaningful life changes that would hopefully promote desistance from future unlawful behaviour.

4.5.1.2.3 Emotional Support and Encouragement

To further promote lifestyle improvements, many sureties provided accused with emotional support. For Simon, being a surety was “all about positivity. If you have that person to believe in you, to show you what you’re doing is positive then they see that’s the way to go.” Striving to be a positive influence, Simon made himself available in case his nephew had problems related to his addiction. He said “if he [the accused] got the itch to do drugs, we’d go do something. We’d go fishing, workout. He was getting good. He’d come to me. Even in the middle of the night, we’d talk all night just to let him know I’m there.” Star also tried to keep her ex-boyfriend busy and out of trouble by taking him to the movies and “doing stuff” together. Besides wanting to keep the accused sober and away from temptation, Genie tried to help Jenny “get her kids back” by getting her a placement at a residential drug facility. This went beyond the scope of Jenny’s conditions, which were to abide by a curfew, avoid contact with the co-accused, and not to attend Walmart, among other places. Getting the accused sober and back together with their children

77 also prompted Samantha to go to great lengths to help Kendrick get sober even though it put her own finances and mental health at risk (more on this in Chapter 7). When I asked what she did to facilitate this, she said:

“his niece saw him a few years ago on the street and he was totally cracked out so for him to now be able to see his family and have these interactions [pause] His son, he hadn’t seen his son in two years. We went together and he got to spend the night with his son. He’s slowly getting his family back. I’m providing support with his sobriety, financial, support in every aspect of his life. When he’s having a bad day at work, I tell him to shake his head, get some good night’s sleep…I want to see him succeed.”

Like Samantha, Melissa and Ryan also put their brother first by being available whenever he needed them. Because Jack had previously sold all of his belongings to fund his drug habit, Melissa and Ryan bought him new clothing, turned a spare room into his bedroom complete with new furniture, and paid for all his groceries.

Like accuseds’ with addictions, accuseds with mental health issues also presented unique challenges for sureties that made their roles more complex than the court’s initial description. As a result, Emily told me that it was vital for her to show her son encouragement and “the brighter side of the world,” which she did by recommending exercise regimes, volunteer positions, and online classes to help deal with his schizophrenia. For some sureties, then, the emotional support was just a necessary part of the job. Indeed, even Randy, who reported having an “easy” experience as surety because his friend Shane had minimal conditions (only having to stay 200 meters from the victim, reside in a place approved of by Randy, not to consume alcohol, and attend court), noted the importance of being supportive. Although Randy trusted his friend, he still accompanied Shane to court “not that I needed to be there but I was there for support.” Suzanne similarly reported not having to use any specific strategies to ensure her son complied because he was too preoccupied with work demands to breach. Nonetheless, she emphasized the amount of emotional support she provided to him while surety saying “you know, a lot of times if you have to walk around with all this stuff in your head, being able to unload that to us is better than him having to carry it around. It’s been good…I didn’t need to provide this support as much prior to this.” The emotional and financial assistance provided by friends and family often went beyond their legal role as surety. While this level of support was motivated in part by their

78 obligation to ensure the accused complied, it also ensued from a desire to see the accused improve their existing life circumstances.

4.5.2 Challenges to Enforcement

Despite employing a variety of enforcement strategies, most sureties acknowledged the nearly impossible task of living up to the court’s expectation that they prevent an accused from breaching. Common barriers to supervision included: the accused’s willingness to breach, personal life circumstances, familial bonds, and limited training. These challenges help to inform the types of enforcement practices sureties use, providing additional context into what it is like trying to fulfill court orders while still facing the practical demands of daily life.

4.5.2.1 The Accused’s Desire to Change

For many sureties, the first challenge was keeping someone from breaching who had no intention of following the rules. Brooke, who was surety for her sister Brittany, acknowledged this as a major difficulty in ensuring compliance. She stated, “she’s an adult and she’ll breach if she wants.” Empathizing with Kendrick’s urge to breach, Samantha admitted that “if they locked me up, I would get out and want to do this all too [not abide by court orders]. It’s just human nature. Some people don’t want to go back [to jail], others don’t give a shit. He doesn’t give a shit.” Speaking about the reality of being a surety versus her initial expectations, she concluded “my expectations have totally changed. I want to hang myself. Doing it for a friend is, you know, you’d think there’d be more control of the situation but there’s not.” Lydia also resented the lack of control she had over the accused Kyle, saying “they know what their conditions are. I shouldn’t have to supervise. These people know that there are conditions and I cannot make someone follow those conditions, I can’t. I don’t think there’s anything anyone can do except threaten to pull bail. You know, they’re grown ups and they’re big enough to break the law.” The inability to control someone who had no regard for the law provided validation for some sureties that the court’s expectations were unrealistic.

Indeed, Greg spoke of the difficulties he encountered as surety for his son, who was ultimately caught breaching by the police. “Being a surety is challenging,” he said, “They expect you to watch someone 24/7 but no one can do that. It’s impossible.” The disparity between the court’s expectation and the reality of being surety made maintaining the accused’s compliance difficult.

For example, Johnny found enforcing a house arrest condition hardest because “they didn’t put a bracelet on her so there wasn’t anything grounding her to the house…she just wanted to do what she wanted and I couldn’t stop her physically and she knew it.” If an accused wanted to breach, sureties had little ability to stop them. Mother and father Denise and Paul were waiting to be surety for the second time for their son when I spoke with them. To be approved by the Crown, Denise and Paul needed to implement a house arrest condition. While they agreed, they worried that the only way they could enforce this condition was “by using a baseball bat to keep him in line.” Wyatt also joked that he would like to see his son “locked in his room” while Abigail disclosed that the only way to ensure 100% compliance was to keep her son “in chains.” Short of using physical restraints, the difficulties of holding accused accountable to court orders was a common sticking point for many friends and family.

4.5.2.2 Surety Life Circumstances

Aside from the accused’s desire to breach, friends and family referred to their own life circumstances as barriers to being a ‘good’ surety. The most common reason sureties gave for breaches during estreat hearings was that they were unaware of any violations due to other obligations related to their employment or health. Interviews with sureties confirm that employment made supervision very challenging. Darla, for example, said being surety was especially stressful because not only did she now have to ensure her daughter was abiding by her conditions, she also had to maintain full time employment. “It’s stressful,” she said, “She’s a grown person and she wants to do what she wants but when I’m at work it’s hard. My anxiety level is high.” Because of this, Darla made arrangements with her mother to watch Sam during the day. Kersen similarly took issue with the responsibilities he had both as an employee and surety. Frustrated, he said:

“They [the court] tell them [the accused] not to do all those things and then they tell the parents or whoever, well you make sure they don’t do all those things, but you work, you’re not going to spend the whole day following them. They can do whatever when you’re gone, they’ll do whatever they want. Those are things that the courts put on you that makes it harder for you than them [the accused]. Your money is at stake and the relationship too.”

For sureties like Kersen, work took them away from their supervisory role and opened the door for potential breaches. Indeed, co-surety Star had difficulties providing supervision for her ex-

80 boyfriend because she worked five nights a week. For sureties who had to enforce a curfew, night-time employment proved especially difficult. Brittany, for example, had a difficult time making sure her sister Brittany obeyed her curfew. Reflecting on her experience, she stated “The curfew one was hard due to my work schedule. I was always worrying about if she was being good or not.” As a result, work obligations reduced the amount of supervision friends and family could offer, resulting in increased emotional stress for sureties. To minimize breaching opportunities, sureties often relied on other control techniques to aid in supervising the accused, like bringing them to work or having another family member check in on them.

Other personal factors that prevented sureties from providing constant supervision included their physical health and pre-arranged social activities. Lydia, for example, had an issue with Josh’s conditions because they made it hard for her to check in on him. Due to physical issues with her hip, Lydia could not always ensure Josh complied with his conditions. This was made more difficult by a condtion that prevented Josh from possessing a cellphone. She explained:

“He’s not supposed to have a cellphone, how am I supposed to call him? How am I supposed to get a hold of him? I don’t drive, I have a bad hip, how can I even get a hold of him if he doesn’t even have a phone. The curfew has set him up for failure. He’s 31 years old, who wants to be in at 11pm? It does set him up for failure. Even fricken teenagers can stay out past 11. They could have made it 1am or something. These conditions are ridiculous. I don’t know what they’re benefitting, they’re just making it harder.”

For sureties like Lydia, not only did the court’s conditions make her job as surety difficult, it also increased the likelihood of a breach. Other than phoning Josh on the phone, Lydia had no way to check in on him to confirm he was complying with his conditions when he was out of the house.

Margaret kept track as best she could with Dan’s curfew, yet she admitted that “in the middle of the night he got up and left and there was nothing I could do. I tried to talk to him and set him straight but he would just not listen.” Similar to Margaret’s experience, three sureties during estreat court described situations where the accused breached curfew while they slept. In one case, the judge acknowledged that while “it’s unreasonable that the surety is the one to watch the accused 24/7, a surety has a life too and shouldn’t be responsible,” he still ordered partial forfeiture for the surety’s inability to prevent the violation. Chapter 7 documents how sureties minimized the amount of unstructured time an accused had by cancelling their own events,

81 avoiding visits with friends and family, and missing appointments. Emily’s experience helps demonstrate why many sureties reorganized their lives to accommodate having to supervise the accused. I reconnected with Emily just over two months after our initial meeting. Based on her account, everything had been going well with her son until her and her husband decided to have dinner with friends. She recounts:

“We went out to a friend’s house for dinner, we were only gone for like 4 hours, it’s about 17 minutes from the house and it wasn’t like we couldn’t get home if there was an emergency and we just needed a break and our friends knew all about it [being surety] and so we didn’t have to talk about it, we could just go there to relax. When we got back, we would have left from 4 and would have got back around 9, when I pulled in the drive way, I knew right away [that he breached] because his car wasn’t there and you just get this gut feeling.”

While out for dinner, Emily’s son breached a no contact term by going to his ex-wife’s home. Despite always being on “high alert that he wouldn’t breach,” her son took advantage of her being away from the house to violate his conditions. Throughout the interview, Emily expressed extreme sorrow in having to report her son and questioned leaving him alone to have dinner with friends. Although the court’s acknowledge that it is “unreasonable to require total surveillance,” sureties like Emily are still accountable for the accused’s actions despite only leaving them for a few hours. It is through this accountability mechanism that sureties experience “secondary prisonization” and provide the courts with an additional avenue with which to control the accused (Comfort 2008; Miller 2014).

4.5.2.3 Pre-existing Relationship Bonds

Parents also noted the difficulties they experienced enforcing conditions on their children. “As a mom,” Kathy said, “it’s very hard to say no to your child, especially if they are an adult.” Luckily for Kathy, her son had no issues complying with his bail conditions. Although Eileen and Wyatt feared the consequences of their son breaking curfew and potentially harming himself or others, they admitted that being parents complicated their role as sureties. Knowing the love his parents had for him, Caleb used this to try to bend the rules. According to Eileen,

“he says to us to make us feel bad ‘what, you’re going to revoke and put your kid in jail?’ There’s a lot of pressure from the person to convince the surety not to revoke and because of that, it makes it hard. There’s a lot of

‘if you love me, you won’t make me follow the rules.’ Many times we let him play this card…but it quickly turns into a slippery slope.”

Darla similarly noted that her biggest challenge as surety “is putting my foot down and leaving it there and not giving an inch or giving in. I guess because she is my daughter, I want to see her succeed and don’t want her to fail.” Like Darla, Brooke also feared the consequences of what would happen if her sister Brittany failed to abide by her conditions. As a result, she found it “hard to tell her no because she’s family and it’s hard to pull bail because she is my sister and she would be put back in jail.” The bonds some sureties had with the accused prevented them from fully implementing court rules, especially since the costs of having to report or revoke on their loved ones can be high. On the other hand, these bonds also help explain why many sureties were so interested in helping the accused make important life changes.

The internal conflict between following the conditions and not wanting to report the accused caused considerable strain on sureties. Not wanting to discourage their brother’s sobriety and ruin the trust they developed, Melissa and Ryan sometimes allowed small breaches to occur despite feeling nervous that this could result in a relapse. Indeed, Simon found that it was “hard to put the hammer down but I had to... It was especially hard when I know he’s trying but he’s gotta try harder so I had to give him that extra kick.” Being firm but fair was tougher for some than others. When I met Pauline, she was with her son Justin, whom she was surety for. She spoke of the challenges of being the accused’s surety and mother. As part of his bail release, Justin was ordered to reside with Pauline and her boyfriend. Feeling uncomfortable around Pauline’s new boyfriend, Justin rarely resided with her, resulting in an automatic breach. As I sat with them in the court waiting area, they both discussed the best possible strategy in dealing with this breach. Although Justin realized that his actions negatively affected his mother, he did not want to accrue additional charges or spend more time in custody. Pauline, who wanted to revoke herself as surety that day, gave in to her son’s request and decided to hold off revoking even though it put her at increased risk of being estreated if Justin was caught. For sureties like Pauline, trying to find a balance between maintaining familial bonds and following court orders became a constant struggle in their daily lives.

4.5.2.4 Limited Instructions/Training

Other sureties had difficulties fulfilling their duties because they did not fully understand the conditions. Star, for instance, did not know that her ex-boyfriend was prohibited from attending the Waterloo-Region without her. When he failed obey this condition, Star attributed the breach to her not knowing “what exactly his conditions were.” When she became surety, she explained that “the lawyer didn’t tell me [what the conditions were]. I didn’t realize how serious it was to be a surety.” Shirley also blamed her son’s breach on not understanding his conditions. As outlined in the previous chapter, George was charged with failing to comply when his ex-wife videotaped him holding Shirley’s bag of wine in a liquor store parking lot. According to Shirley, “I didn’t know he wasn’t allowed, that he couldn’t go into the liquor store because even in a grocery store they have beer there but I think it was the carrying part. But he can’t just stay in the car, he has to go wherever I go.” For her, having to accompany her son every time he left the house was complicated. She continued, “When we go to the show, I don’t go to the bathroom with him. I know I’m supposed to be with him, but I’m definitely not going with him, especially since he goes a couple of times during a movie. They take it too far sometimes.” The lack of clarity in knowing when it was/was not appropriate to enforce her son’s conditions made fulltime supervision hard. Genie also spoke of the challenges she faced helping her niece get treatment while simultaneously respecting the bail conditions. As a surety, Genie’s number one priority was getting her niece treatment for her drug addiction but her curfew made it difficult because it “didn’t give any exceptions for rehab.” As a result, Jenny “lost her bed because the treatment facility couldn’t take her until it [the curfew] was dealt with. The bail variation took nine days but during this time is when we ran into problems.” The restrictiveness and scope of conditions therefore opened the door for Jenny to breach despite Genie’s best efforts to avoid it.

4.6 Discussion

The courts expect a lot from sureties. Short of physically restraining the accused, sureties are expected to monitor the accused’s actions, provide close supervision, and ensure the accused complies with their conditions. Legally, surety releases are one of the most onerous forms of release and require adequate justification from the Crown before they are used. In the community, sureties act as the “eyes” of the court who are primed to identify and report any court violations or criminal activity. Indeed, members of the court often compare the role of the

84 surety to that of a jailer. While the previous chapter questions theoretical depictions of sureties as pure extensions of the court for their ability to adapt bail outcomes based on their own desires, the current chapter investigates this further by examining how sureties mediate the relationship between the courts and the accused.

As a surety, friends and family are given considerable responsibility to control the actions of the accused but are often prevented from fulfilling court expectations due to legal and extra-legal circumstances. Overly restrictive or contradictory conditions made it difficult for sureties to provide necessary supervision. In some cases, the surety was not properly instructed on what the conditions entailed, which caused confusion regarding appropriate behaviour. Some sureties also reported not fully understanding what the role itself required, making it all the more challenging when they were forced to make modifications to their lives in order to accommodate the accused’s conditions. The transformative process that is involved in becoming a surety was something that many sureties were not expecting. Having to take on the role of a jailer, support worker, and financier while still maintaining their original relationship with the accused turned out to be more than some sureties anticipated. Those who were willing to take on these roles commonly felt they were unprepared or unequipped to adequately carry out the court’s requests. Without a solid understanding of what the role entailed, some sureties were set up to fail from the start.

The little direction that sureties did receive tended to emphasize strict supervision. The legal requirement that sureties report accused for anything less than total compliance encourages control-oriented strategies, whereby sureties provide around the clock supervision and employ invasive monitoring techniques to prevent non-compliant behaviour. The results show that many sureties became accustomed to using such techniques even in cases where the accused did not have a curfew or house arrest conditions. To minimize temptations, sureties monitored accuseds’ cell phone activity, accompanied accuseds on social outings, took control of the accuseds’ health, and leveraged the consequences of court violations. By taking on the demands of the court, sureties became immersed in the broader penal landscape, at times transitioning into a role more akin to probation officer or jailer than friend or family. Consequently, some friends and family experienced a form of secondary prisonization in much the same way as the wives and girlfriends of male prisoners (Comfort 2008). Although the use of control-based strategies is encouraged and supported by the courts (Schumann 2018), probation research shows that this

85 could negatively affect accused compliance. Probation officers who used strictly coercive power failed to establish strong relationships with their clients, resulting in increased court violations (Bolin et al 2019; Stojkovic 1986). Further research is therefore needed to assess whether sureties who use control based strategies have a similar effect on an accused’s likelihood of breaching.

Despite the rigorous monitoring strategies prescribed by law, many sureties assumed a more discretionary role as they commonly employed supportive practices that addressed issues they believed were to blame for the accused’s legal troubles. Like the women in Comfort’s (2008) sample, sureties also modified their role to fit with their own objectives. In addition to using monitoring and surveillance techniques, most sureties employed strategies to inspire positive change in the accused’s life. By providing both tangible (i.e. financial) and intangible (i.e. support and encouragement) resources, sureties often went beyond their imposed legal duties. Although these sureties were still concerned about compliance, their ultimate goal was to help the accused reform. Based on social control (Hirschi 1969) and life-course theories (Sampson and Laub 1990; 1993), having the support of friends and family can positively affect long-term desistance from crime. As such, strategies that help the accused make a turning point could in fact promote a greater likelihood of successfully completing bail than the control-focused strategies mandated by law. Indeed, there is considerable support for hybrid approaches that combine both control and care oriented approaches in community supervision research (Kennealy et al 2012; Paparozzi and Gendreau 2005; Skeem and Manchak 2008; Skeem et al 2007).

The involvement of friends and family, while distinctive of broader ‘responsibilization’ attempts, inadvertently reintroduces rehabilitation as a secondary penal goal. As a result, friends and family cannot be viewed as simply being “characteristic of the penal community” (Clemmer 1940) as they play an important role in shaping the lived experiences of bail. The problem with this type of involvement, however, is that it may encourage friends and family to relax or overlook certain conditions for good behaviour. While the following chapter expands on the reporting habits of sureties, it is possible that sureties may be more accepting of minor breaches (i.e. being an hour late past curfew) if the accused is making an overall effort to change. Even if used in conjunction with control techniques, using reward-based power puts sureties at risk of estreatment because they do not have the legal authority to modify existing court orders. Thus,

86 for some, being a surety meant constantly having to choose between fulfilling their legal obligations or addressing the accused’s needs.

Meeting the demands of the court was especially challenging for sureties who were closely related to the accused. Parents, in particular, reported difficulties trying to strike a balance between being coercive and supportive. Although bail is not meant to be punitive, the frequent use of terms like “jailer” and “prison” by participants suggests that sureties very much saw this as a form of punishment. Yet, at the same time, friends and family used being surety to gain an upper hand in the lives of their loved ones, demonstrating how court and surety objectives coalesce under this type of release. The control friends and family obtained over the accused supports Foucault’s (1977) claim that power can be both repressive and productive. Under the guise of being surety, families and friends relied on specific strategies that they thought would inspire the accused to change. As such, sureties would commonly confiscate phones, monitor computers, and restrict unstructured time to keep accuseds away from negative temptations. Rather than just minimize crime opportunities, these tactics were commonly used alongside care- based strategies in the hopes of making the accused into a more productive member of society. Not all accused appeared receptive to following these rules though, as many sureties acknowledged this as a barrier to compliance.

Scholars like Peggy Giordano et al (2007) and Ray Paternoster and Shawn Bushway (2009) draw attention to the cognitive and social processes involved in a person’s decision to desist from crime. Despite approaching the desistance process in two distinct epistemological ways - Giordano et al (2007) emphasize the social interactions that act as “hooks for change” while Paternoster and Bushway (2009) focus more on individual, cognitive self decision making – both associate desistance to an adoption of a positive self identity. Thus, if an accused is not willing or able to make the identity shift needed to change, their surety’s actions may not be perceived as helpful. Although sureties may act in the accused ‘best interests’, their actions could be experienced as coercive if the accused is not prepared to do as their surety says. Certainly penal research demonstrates that rehabilitative strategies can indeed be punitive, as they tend to obscure power dynamics and reinforce normative standards (Hannah-Moffat 2000; Hannah- Moffat and O’Malley 2007). Surety releases may similarly disguise the challenges accuseds face living under the control of their loved ones who can use jail as a bargaining chip to coerce certain behaviour modifications. In this way, the supportive techniques sureties used may be

87 experienced as a form of “strong arm rehab” if sureties threaten to phone the police or revoke bail for failing to abide. Thus, the unrealistic expectations some sureties have regarding the accused’s ability to address their addictions, mental health, or familial issues while out on bail could put strain on their relationships and increase the likelihood of bail violations, blurring the boundaries between care and control-based strategies.

Research on bail has written extensively on the ‘appropriateness’ of bail for the accused, identifying the legal and constitutional problems that result from placing onerous conditions on individuals only charged with an offense (CCLA 2014; Myers and Dhillon 2011; Webster et al 2009). Less discussed but perhaps equally problematic is the resulting consequences that arise from a surety’s failure to successfully adapt to court expectations and prevent an accused from obtaining new charges. Rather than judge an accused for their alleged offense(s), surety releases allow the courts to “widen the net” by judging those they deem to be in a position of power to reduce criminal activity. Similar attempts to punish parents for their inability to prevent crime has been documented in North Carolina where parents of juvenile delinquents were forced to attend and participant in court-ordered parenting skills classes (see Schnaffer 1997); similarly, in other states, public housing prohibits support for families of convicted offenders (Simon 2007).

Despite the variety of strategies sureties employ to keep the accused out of trouble, like driving them to court, having other family monitor their behaviour, and providing emotional support, there were a slew of factors that made this role challenging. Instead of deliberately skirting their role, most sureties had additional responsibilities related to work and family, which interfered with their own ability to carry out the court’s expectations. The inability to reconcile being a surety with maintaining a regular routine put some sureties at risk of being estreated. The Crown was seeking estreatment from at least one of the sureties I interviewed (Pauline) at the time of writing. While the legal definition of a surety is similar to that of a probation or parole officer, sureties are held to a much higher standard of accountability despite having no professional training. Unlike sureties, probation or parole officers do not receive reprimands if their clients fail to obey court orders. Thus, the documented challenges of enforcing court-orders problematizes whether the court’s expectations of sureties are realistic in light of these circumstances (see Chapter 7 for a more fruitful discussion on this topic).

4.7 Conclusion

Expanding current research on bail and punishment, the current chapter finds that sureties employed an array of techniques that both converged with and diverged from court expectations. In keeping with court demands, friends and family commonly employed invasive monitoring practices in the hopes of preventing bail breaches. By assuming a role similar to that of a quasi- prison guard, friends and family experienced a ‘secondary prisonization’ that saw them take on the objectives and customs of the court. However, rather than rely solely on surveillance-based strategies directed by the law, sureties also relied on practices that diverged from court directives, providing accused persons with additional support and resources aimed at behaviour modification. In doing so, sureties introduced rehabilitation as key feature of the bail experience, making them more than just a cog in a wheel (Clemmer 1940). By using these techniques, sureties often gained their own control over the accused, demonstrating the power of non-state actors to inform the way criminalized people are supervised in the community. In this way, accused are forced to navigate an intricate web of control that dictates their daily lives. For sureties, the ironic trade-off of playing a vital role in casting this web is that their lives also become ensnared within it as failure to assume their role as civilian jailer puts them at risk of financial forfeiture. Thus, as the courts continue to push crime control functions onto ordinary citizens, the difficulties sureties experienced enforcing conditions highlights the impracticality of holding people responsible for someone else’s alleged criminal actions. The following chapter furthers this discussion by assessing the willingness of sureties to report non-compliant behaviour and the metric behind such decisions.

Chapter 5 “He’s in jail now and I don’t feel bad”: Analyzing Sureties’ Decisions to Report their Loved One to the Police Introduction

Building on the results from the previous chapter, this chapter assesses the willingness of sureties to report bail violations. Although sureties experienced numerous challenges when supervising the accused, they employed an array of strategies to prevent breaches that seemingly satisfied the needs of both the court and the accused. What happens, however, when accused persons fail to comply with court orders and follow their surety’s rules? To date, minimal research exists that explores the willingness of sureties to report their loved ones to the police. Arguably the act of reporting makes being a surety even more analogous to a jailer, further entrenching the friends and family of accused individuals into the criminal justice system. As such, studying the reporting habits of sureties provides additional insight into the secondary prisonization (Clemmer 1940; Comfort 2008) of friends and family. Legally, sureties are likely to disclose court violations to the police because the financial costs of not doing so are higher than the cost of sending the accused back to jail. While this position reflects a purely rational choice perspective, it neglects other important factors that influence reporting decisions, such as offense seriousness (Bachman, 1998; Felson & Pare, 2005; Shah & Pease, 1992), reporter-offender relationship (Black 1976), and perceptions of the law (Carr et al 2007; Rosenfeld et al 2003; Solis et al 2009). Using the same 36 follow-up interviews and estreat observations as Chapter 4, this chapter finds that despite the general commitment sureties showed towards supervising the accused, how they defined breaches or non-compliant behaviour varied considerably based on the perceived severity of the act, the fairness of the conditions, the accused’s best interests, and their own bias towards the law. The relative closeness between the surety and the accused complicated the reporting process, with some sureties reporting a greater willingness to overlook breaches than others. Yet, the proclivity to report court violations to the police draws attention to: 1) the tensions that arise when accuseds fail to live up to their surety’s expectations and 2) the ways sureties use their position to try to modify the accused’s behaviour. The ability of friends and family to leverage the consequences of non-compliant behaviour conceals the more punitive aspects of surety releases, forcing us to consider the layered effects of pre-conviction punishment.

5.1 Failing to Comply

Based on the ladder principle outlined in Sec. 515 (10) of the Criminal Code, surety releases are one of the most restrictive forms of release. As such, advocates, scholars, and legal practitioners tend to attribute surety releases to higher rates of pre-trial detention and administrative breaches, arguing that this type of release may infringe on constitutional rights to reasonable bail (CCLA 2014; Myers 2009). Indeed, scholars have found that the more conditions accused need to follow, the more likely they are to breach bail. For example, the John Howard Society (2013) found that certain conditions, like no alcohol, are positively correlated with breaching. Having a surety may further complicate life on bail by not only putting the accused at greater risk of breaching (because sureties can impose their own rules) but also increasing the odds of them getting caught. While the direct relationship between surety releases and failure to comply remains untested, the period between 2005-2015 saw a simultaneous increase in both administrative breaches (which rose 8 percent during this time) and surety requirements (Department of Justice 2015). Provincial court statistics from 2018 also indicate that administration of justice related offenses were the most commonly heard offense type with failing to comply with a court order comprising 16% of all offenses heard in Ontario (Ontario Court of Justice 2018). Despite the frequency of failure to comply charges and surety releases, the Ontario Court of Justice does not systematically track information on bail breaches or sureties. Thus, while these statistics are helpful in showing the proportion of failure to comply charges going through the court system, they offer little insight into the actual reporting habits of sureties.

Knowing the decision-making process of sureties is an important step in understanding how this type of release works in practice. The minimal empirical research that exists makes it difficult to determine whether sureties are actually an onerous form of bail. Studies on Intensive Community Supervision (ICS) programs in the United States find that offenders perceive ICS to be equally as punitive as prison (Crouch 1993; Petersilia 2003; Petersilia and Turner 1993). When given the choice, offenders commonly request prison over community supervision. Compared to prison, it is believed that ICS may constitute a greater deprivation of privacy due to regular and invasive home visits that radically shape how an offender lives their life outside of prison (Petersilia 2018). Numerous and restrictive conditions make life for parolees difficult and thus increase the

91 likelihood of court violations and added charges (Grattet and Lin 2016). Like ICS programs, the higher levels of surveillance that come with surety releases compared to other forms of bail may be exceedingly punitive. If sureties are reporting any and all breaches then this type of release may indeed be overly onerous. On the other hand, the decision to report an accused for court- order violations may be more complicated than the current literature suggests. Although sureties tend to use surveillance-based strategies to increase compliance, their additional reliance on care- oriented methods (see Chapter 4) could assuage their obligation to report.

5.2 The Pull of Bail

From a legal perspective, sureties are more likely to fulfill their promise to the court to avoid any financial consequences. Unless released on a judicial undertaking, all accused and their sureties vow to pay a set bail amount if the accused obtains new charges while living in the community. This monetary amount is based on an analysis of the risk the accused poses while out in the community and the financial assets of those involved. Estreat court observations reveal that average monetary amounts range from $250 to $20,000 for accused and $0 to $20,000 for sureties. Setting the bail bond at a high enough price is thought to prevent an accused from breaching or committing a new (alleged) crime because the cost of violating the terms of the release is not worth the financial and emotional consequences. While the onus is placed on the accused to comply, sureties are held to similar standards. Estreatment is determined solely by the surety’s ability to report the accused to police and not on their overall diligence as a surety (Trotter 2010). This dissuades an accused who may abscond at the last second knowing his/her sureties will be relieved of any penalty by having just done their best (Trotter 2010). Indeed, the Superior Court decision in AG. v. Horvath (2009 para 41) agreed that an over-emphasis on the surety’s lack of fault could undermine the bail system, especially “if the accused came to believe that they could fail to attend without their sureties suffering any penalty.” As such, the pull of bail operates under the assumption that accused will follow the terms of their release to prevent subjecting their “nearest and dearest” who come forward as surety the “undue pain and discomfort” of having to forfeit the amount of the recognizance (AG v. Horvath 2009 para 40). It also motivates sureties to report an accused to absolve themselves from any financial obligation.

While the goal of estreatment is to maintain the pull of bail, judges are cautioned against adopting a “rigid rule of total forfeiture” to ensure that sureties still come forward and accused

92 are not unnecessarily detained (AG v. Horvath 2009 para 44). As such, the pull of bail can also be upheld in cases where only partial forfeiture is deemed appropriate. In making such decisions, judges need to balance the surety’s due diligence with other factors such as the amount of the original recognizance, the circumstances in which the surety entered into the recognizance, the surety’s financial position, the surety’s post breach conduct, and the relationship between the surety and the accused (AG. v. Horvath 2009 para 51). Despite these guidelines, the lack of transparency in how estreat decisions are made has cast a degree of skepticism around the effectiveness of this process. Some individuals, for example, feel the system is too lenient on sureties and accuseds who “are released from custody only to thumb their noses at the conditions they’re ordered to abide by” (Powell 2012). Anecdotal evidence suggests that this may be a function of Crowns only seeking estreatment in cases when bail is set at a high amount to avoid wasting court resources pursuing cases with minimal estreatment potential (Powel 2012). The resulting assumptions are twofold: that the pull of bail is not strong enough and that when left to their own devices, sureties are negligent at best in upholding the law.

5.3 Reporting the Accused: a Rational Choice?

Chapter 4 indicates that the majority of sureties took their supervisory role seriously, using a variety of control and accused-oriented strategies to increase compliance as well as to motivate change. The dual roles sureties assumed as both the accused’s loved one and jailer ultimately shaped how they supervised the accused in the community. In addition to supervising the accused, however, sureties must also be willing to report the accused to the police. Compared to monitoring the accused’s behaviour, reporting could present more difficulties for sureties who may express doubt about having to phone the police on a loved one. Although the ‘pull of bail’ is an example of classic rational choice decision-making, theoretical advancements have expanded the theory beyond a simple, economic based calculation. According to Frijda (2010: 570) emotions “are among the main direct causes of action.” Feelings of guilt and shame, for example, play an instrumental role in shaping and promoting the belief systems that support a person’s actions, including the commission of crime (Svensson et al 2013). Similar to decisions to offend, decisions to report a loved one to the police are likely rife with emotion because the accused ends up back in custody with additional charges. Having new charges puts the onus on the accused to show why they should not be detained, which inevitably makes bail more difficult to acquire (Trotter 2010). To convince the court that they should be released, accused must present

93 a more restrictive bail plan than their previous release. For many accused, the challenge of putting together a more substantial release plan leads to longer waits in custody (Wyatt 2016). Consequently, the potential emotions associated with sending an accused back to jail could factor into a surety’s willingness to fulfill their legal duties.

The decision to report an accused may therefore be a balance of what is legally right versus what the surety feels is morally right. As Chapter 3 indicates, many friends and family became sureties due to their commitment to the accused. Violating this moral obligation by reporting the accused to police may lead to the belief that they failed to live up to their own internalized moral code, resulting in feelings of guilt (Elster 1999). Indeed, Black (1976) contends that the shorter the ‘relational distance’ between the victim and offender, the less likely the victim is to rely on criminal justice intervention. While further testing of this theory (see Felson and Ackerman 2001; Felson and Lantz 2016) has led to inconclusive results, it may hold more weight for third party reporters, like sureties, who have not been victimized by the accused and want to maintain social ties. The desire to keep the accused out of custody could also affect a surety’s intention to seek police intervention for non-compliance. Gottfredson and Gottfredson (1988) posit that victims and non-victims are both more inclined to report a crime if it suits their own objectives such as obtaining restitution or upholding the social contract (Galvin and Safer-Lichtenstein 2018). If a surety’s goal does not align with their legal role, it is probable that they will be more reluctant to report the accused to the police.

Extant literature further indicates that offense seriousness is a strong predictor of crime reporting among victims (Bachman, 1998; Felson & Pare, 2005; Shah & Pease, 1992; among others) and non-victims (Galvin and Safer-Lichtenstein 2018). Baumer (2002) finds that victims of minor offenses use considerably more discretion when cooperating with the police. This is consistent with other studies that show that female victims of intimate partner violence are more likely to cooperate with the police if they have been injured by comparison to those who have no physical injuries (Goodman et al., 1999; Hare, 2006, 2010; Hirschel & Hutchison, 2003; McLeod, 1983). While less is known about the effect of crime seriousness on third-party reporting, Galvin and Safer-Lichenstein (2018) indicate in their comparative study that crime seriousness plays a larger role in decisions to report among third party reporters than victims. When bystanders fail to report, Mayhew et al (1979) speculate that it has less to do with the perceived triviality of the offense and more to do with a failure to recognize the behavior as a crime. In this way, decisions

94 to report an accused may be tempered not only by a surety’s perception of the severity of the breach, but also by their ability to identify it as problematic.

The determination of breach seriousness may be based on how sureties view the criminal justice system more broadly. Victimology research finds that legal cynicism reduces a victim’s willingness to cooperate with the police, sometimes overriding their desire for punishment (Browne & Williams 1993; Erez & Belknap 1998; Hare, 2006; Koss 2000; Pagelow 1984; Shainess 1977; Singer 1988). Indigenous, Black, and Latinx peoples, for example, tend to report lower levels of confidence in law enforcement than non-minority groups due to racist and prejudicial police practices (Cao 2011; Jones-Brown 2007; Kennedy 2008; Slocum et al 2010). Negative experiences with members of the criminal justice system, both directly and indirectly, also adversely affect perceptions of the law (Hitchens et al 2018). Communities that face high levels of institutionalized stigma and are consciously aware of the law’s role in their subordination may be more inclined to actively resist the law (Bell 2019). Poor confidence in the police minimizes a person’s willingness to report crimes, comply with the law, and co-operate with the justice system (Brown and Benedict 2002; Cao et al. 1996; Chow 2002; Ren et al. 2005; Sunshine and Tyler 2003). Distrust in the police/courts may lead some sureties to overlook bail breaches because they do not see the system as overly helpful or fair.

Yet legal cynicism is just one type of cultural frame that shapes how marginalized communities respond to crime and interact with the criminal justice system. To understand why members of these communities rely heavily on the police while being highly distrusting of them (Hagan et al 2017), Bell (2016) used a microsociological approach by understanding the situational contexts that influence police reliance among African American mothers. She found that women reconciled their cynicism of and reliance on the police by drawing on a cultural repertoire of strategies that included institutional navigation, officer exceptionalism, domain specificity, and therapeutic consequences. Of particular interest to the current study is how the women used police in certain situations in order to help regain control of a situation they deemed threatening and to get a loved one access to social service programming or to interrupt behaviour they considered disruptive (i.e. to “save” their child from law-breaking peers). The results demonstrate the way that trust is “negotiated and deployed in emotionally charged moments between actors. These moments generate energies that carry over into future interactions with the police, such that even if mothers still generally distrust police, possibilities for situation-specific

95 trust remain” (Bell 2016: 338). In this way, sureties in the present study may be skeptical of the criminal justice system more generally but still be willing to report their loved ones to the police, depending on the micro-level situational dynamics at play.

Sureties’ decisions to report an accused should thus be considered in light of other extenuating factors beyond the possible financial repercussions. Though little research has explicitly commented on the reporting decisions of third-party agents, victimology research suggests that strength of relationship, crime severity, and trust in the criminal justice system can shape a person’s willingness to seek police intervention. Understanding the reporting habits of sureties provides important insight into how they enforce court-ordered conditions and identify bail breaches. It also helps assess the degree to which friends and family assist or resist the criminal justice system in controlling the actions of accused individuals. While current research has explained why court’s offload this responsibility onto sureties, it has yet to explain how sureties carry-out this role in the community. Building off the previous chapter, this chapter proceeds by discussing how sureties define and report bail breaches.

5.4 Findings

5.4.1 Breaking Bail: Defining and Reporting Bail Breaches

One of the most important legal roles of the surety is to report non-compliant behaviour, yet we know very little about how they define and report bail breaches. Of the 36 people I spoke with, 13 were no longer surety at the time of the follow-up interview because they either revoked their position or reported the accused to the police or the police apprehended the accused independently (for a detailed list, see Chapter 2). Three others reported during our interview that they were seriously thinking about revocation. Generally, friends and family interpreted bail breaches differently than the courts, taking into account the context of the breach, the progress of the accused, and the fairness of the conditions. Some even allowed minor breaches to occur in order to minimize more serious violations. Decisions to report the accused for breaching often depended on how sureties viewed the law and the accused more generally. While some said they would report any and all infractions, others showed considerably more hesitancy.

5.4.1.1 Breach Seriousness

Decisions to overlook non-compliant behaviour often centered on the insignificance of the alleged breach. For several sureties, the accused needed to commit a violent or egregious offence before they would consider phoning the police. Randy stated that “If I felt like, um, if I felt he was able to emotionally not control himself or do something violent, I guess I would be compelled to but I really wouldn’t want too, he’s a friend.” If it was a less serious breach, like being within 200m of the victim, Randy reasoned,

“I would say you obviously can’t do that, you’re putting yourself in jeopardy and me. The consequences would be severe and obviously it wouldn’t help him in the future, and it would be stupid. I would just talk to him first, as long as anything didn’t happen with the neighbour, I would talk to him and just make sure he wouldn’t do it again even though that could cause him and me a lot of trouble.”

Camilla also agreed that the context of the breach would be important in her calculation to report. “It would depend,” she said,

“It would really have to depend on the certain term. What it was. If I talked to her at 3am and I knew she was driving home with a party still going on in her jeep, I would. She would probably do some time but if there was a possibility of her or someone else getting hurt, then yea. If it was life or death, then yea. But if it was something petty, like a missed curfew, I wouldn’t.”

Star used a similar metric in deciding whether she would report her ex-boyfriend to the police. According to her, it would depend on “what the breach is, how serious it was and how it played into everything. Like obviously any violence or he was going to harm himself or someone else [she would report].” With less serious offenses, she was much more reluctant saying, “Um, I don’t know. I feel like I could talk him out of something if he’s about to do something before I’d have to call the police. Something more minor, I wouldn’t breach him over.”

Relatedly, some sureties even allowed minor breaches to occur. Lydia, for example, acknowledged that her friend Josh failed to follow his curfew condition but had not reported him because “he seems to be staying out of trouble.” For her, coming in past curfew did not classify as a serious breach because, at least to her knowledge, he was not doing anything that she considered to be ‘illegal.’ She also believed his conditions were unfair, which likely contributed to her reluctance to report him (more below). Kersen, on the other hand, had a comparatively

97 easier time getting his son to comply with his conditions, which he described as more than fair. Still, when asked whether he would know if his son breached, he acknowledged “I wouldn’t be able to tell. Sometimes he takes longer, an hour, an hour and half, maybe he’s out having a drink with his friends. He didn’t get into any harm so it’s okay.” Despite describing himself as a vigilant curfew enforcer (see previous chapter), Kersen actually gave Yousef considerable lee- way when it came to his conditions. Similar to Lydia, Kersen defined breaches not by his son’s total compliance to his conditions, but by the perceived seriousness of the infraction.

By allowing small breaches, other sureties felt they avoided more severe violations. To prevent their 18 year old son Ethan from leaving the house to see friends, Eileen and Wyatt permitted their son to have small social gatherings in their home. Despite his condition to not drink or possess alcohol, Eileen and Wyatt allowed Ethan’s friends to bring alcohol into the home because their son “was under our supervision and we could monitor him at least.” By allowing and subsequently not reporting the breach, Eileen and Wyatt believed they prevented Ethan from going out past curfew and causing more harm to himself and others. Jack also disclosed to me that his sister-in-law Debbie allowed his son Glenn to drink in moderation and go out on his own. Although this meant that Glenn had technically violated his abstinence and house arrest conditions, Jack defended Debbie’s judgement saying:

“They [Debbie and her husband] were very diligent. They knew where he was and where he was going. I know he had some beers, which were part of his conditions to not, but I wasn’t concerned because it was in a controlled situation. He wasn’t binging. They allowed him to go out every few hours with their son and that’s when he was exposed to the parties, drugs, but Glenn would come home and they’d talk to him to make sure he wasn’t drunk or on drugs. It helped him get a breath of fresh air.”

Like with Eileen and Wyatt, Jack saw the value in allowing for minor infractions so long as they took place in a controlled environment.

5.4.1.2 Failed Expectations/Deservedness

Sureties who believed the accused deserved to be in custody or were disappointed in the accused’s overall progress appeared more willing to report non-compliant behaviour to the police regardless of the severity of the breach. Although Eileen and Wyatt eased some of their son’s

98 conditions, they eventually reported him to the police and charged him with stealing their credit cards when he failed to come home on time for curfew. “Our biggest fear,” they told me,

“is that he is going to kill himself or someone else. Public safety is important to us…because he’s 18, legally we have no rights to stop him or to keep him away from anything. Even as a surety, there’s nothing to stop him. As a surety you just have to revoke. Sometimes he’s safer in custody.”

Pauline also reported her son Bradley to the police and revoked herself as surety because “he got into drugs” and could not stay clean. Interestingly, Pauline demonstrated more caution when revoking for her other son Justin. In addition to pressure from Justin not to revoke, she also believed Justin’s conditions were too restrictive whereas Bradley’s conditions were not restrictive enough. Ronda similarly felt that her son’s behaviour warranted going back to jail because he just could not comply with any of his conditions. She told me she physically drove him to the police station in order to show him the value of complying with the law. Although Cynthia, like Ronda, reported her son to the police for breaking his curfew, she later questioned her decision because it made it more difficult for him to be released a second time.

Few sureties, however, second guessed their decision to involve the police, as many saw this as the only way to discipline the accused for inappropriate behaviour. Disappointed with Dan’s lack of respect for her and her home, Margaret felt that he ought to be in jail. She disclosed that “he’s in jail now and I don’t feel bad, he needs to learn a lesson and learn to be quiet when he’s asked…even his mom said he deserved to be in jail.” Suzanne similarly based her decision to report on the accused’s deservedness. While Suzanne had minimal issues as surety for her son and did not think she would ever have to report him, she did not rule this out completely, suggesting that “If I ever had too, I would but I don’t think it would ever come to that. If I had too, I would feel that he deserved it. I wouldn’t feel guilty about it because that knowledge was there for him, you know.” While Lydia refused to report Josh to the police, she did insist that she would revoke. Frustrated, she complained “I’m not waiting for it to be done, I’m going to pull his bail. Like I didn’t even have to do that with my kid, that shit he’s put me through is bullshit, her too [her friend and Josh’s girlfriend Mandy].” Although reporting or revoking on the accused helped sureties regain control, for some sureties like Lydia, revoking posed challenges because she had to be physically present in the courthouse to revoke. Having limited mobility and finances made the nearly 3 hour round trip bus to court difficult. Pauline corroborated the

99 difficulties involved with revoking, disclosing that it was a time consuming process because it could only happen during regular court hours. Nonetheless, as discussed in the previous chapter, friends and family frequently had their own expectations about how the accused should act while on bail. From the perspective of a surety, accused who failed to live up to these expectations were more deserving of being sent back to custody. If the surety believed the accused was making an effort, they appeared less enthusiastic about reporting or revoking. In two separate cases, both Debbie and Suki admitted that because their nephew and brother had been doing well, they would likely only report something serious. As stated by Suki, “If he had been giving me problems from the start, then I’d probably call.”

5.4.1.3 Fairness

Sureties showed a high degree of skepticism in reporting if they believed the allegations against their loved ones were false or the conditions were unfair. When I asked Shirley, who believed her son’s ex-wife was “ruining his life,” if she would ever report her son to the police for a breach, she explained:

“That’s a tough one. I’m not sure I could. I know I’m supposed too but if it came right down to it, I can’t say I would. If he didn’t do anything that was really warranted, I couldn’t. This whole thing is bullshit. He didn’t do it and now they got him for breaking bail. I always believe in innocent until proven guilty but this system isn’t this way. I think if he was, if he was guilty of anything, than it would be different. But if he’s innocent, that’s the part I’m having a problem with. When he was a teenager, I told him if I caught him doing something, I’d turn him into the police. I know he’s innocent…If I knew my son was guilty of something, absolutely, it’s the innocence that I have my problems with”

Knowing her son was innocent made it difficult for Shirley to imagine a scenario in which she would report her son. Her belief that the conditions were unwarranted further prompted her avoidance of the police. Like Shirley, Star was also less inclined to say she would report the accused because she believed his charges were unwarranted. When she was explaining her thought process behind breaching, she said “Another thing that’s important to know is that the charges that he’s charged with have nothing to do with him. So I feel his frustration that he’s not even guilty of them so it’s a lot to deal with these conditions. I hate to say it but it’s true [that I wouldn’t report]…I’m taking these conditions in light of this.” For sureties like Star and Shirley

100 reporting the accused to the police became less likely if they thought the accused was innocent and undeserving of having to abide by restrictive conditions.

The overall fairness of the conditions also factored into decisions to report. Samantha, for example, loosened the conditions on her friend Kendrick. Recognizing the possibility that he might have missed the bus coming home from work, she regularly pushed his curfew limit from 6pm to 7:30pm. She also sometimes overlooked his no alcohol condition by taking him to the liquor store and having “a few drinks in the backyard” together. To her, Kendrick’s house arrest was unfair. About the condition, she said “I think he needs to have more freedom – like a curfew so he can see a girl and come back….the house arrest is a negative for him.” Margaret also initially doubted the value of a no contact order between Dan and his girlfriend Lily because it prevented them from working on their relationship. As a result, she allowed Lily to live with them. Characterizing the accused’s conditions as excessive, Simon permitted his nephew to spend some nights elsewhere despite a condition that mandated him to reside with Shawn and abide by a curfew. The discretion showed by these friends and family indicates the way sureties modified conditions based on their own perception of what was legally acceptable. Relaxing an accused’s terms therefore allowed sureties to employ their own sense of justice by making the release fairer and less constrictive.

The tendency to report appeared to increase, however, when sureties believed the conditions unfairly interfered with their own lives. While Johnny felt like he was “basically…a babysitter” who was “a parent to an adult,” the task was more than he anticipated. Although he attributed some of Helen’s actions to her declining mental health, he eventually reported her to the police when she failed to return home after being gone for several days. As he explained, “I’m not her dad, I’m not her babysitter, and I’m not her boyfriend.” In other words, he did not feel compelled to overlook her breaches because doing so surpassed his responsibilities as her friend. Margaret similarly reported her friend Dan to the police for a series of breaches that began as soon as he was released on bail. When discussing her experiences, she said “I brought him to recovery to celebrate and showed them [Dan and his girlfriend Lily] where to get help but he wanted a babysitter. I couldn’t take him by the hand everywhere, I’m not that mobile.” Although Margaret tried to make good on her promise by encouraging Dan’s sobriety, she was ill-prepared to supervise his every move. The aversion sureties like Johnny and Margaret felt towards the

101 process of becoming surety and the impact the conditions had on their own lives likely prompted them to report the accused to the police.

5.4.1.4 Legal Cynicism vs. Legal Responsibility

Personal biases towards the law further impacted sureties’ calculus to report. Those who were more skeptical of the criminal justice system were only willing to phone the police if the accused committed a serious offense. Johnny said that he would only report his friend to the police if he thought “she was going to hurt herself or someone else over dumb shit or be a danger to her kids.” He went on to explain that “I don’t like cop calling. Personal past – they have just never done anything to help me out.” Although Johnny did eventually report Helen to the police due to the constant stress of being her “babysitter” (see above), his aversion to the police provides some explanation for why he waited several days before calling her in. Like Johnny, Samantha also avoided the police whenever possible. Thus, despite her annoyance with being surety, she too stated that aside from coming in late(r) for curfew and using drugs in her home, she would not report Kendrick to the police. Recalling her past experiences with the police, she said

“It would suck to call the police. I’m not the person to call the police but when it comes to my property I will. [why do you describe yourself as someone not to call the police] Cause of my past experiences. I’ve been arrested, I’ve been harassed by police. I was an addict. I was walking home in the middle of the night and the police pulled me over, I was walking home. He made me come talk to him and he searched me. It was bad – they did not like me so I had to move. Cops don’t see any progress where I’m from. Once you’re an addict, they always see you as that regardless of improvement.”

As an alternative, Samantha confirmed that she “absolutely would” revoke herself as surety. Relatedly, Lydia also preferred to revoke over reporting because she did not see a breach as being “illegal.” Like Johnny and Samantha, Lydia was skeptical of the police, explaining “I just think the police don’t help a lot of times, I don’t believe that aside from keeping the peace, to call them it’s just going to make it worse for me. The tenants upstairs, calling the police is a danger to my life.” Believing that drawing a police presence would cause a negative reaction from her neighbours (whom she steadfastly believed were members of a violent gang) persuaded Lydia to revoke rather than report. Distrusting the police and not wanting to be someone to call the police also prevented Simon from reporting his nephew for minor breaches, instead choosing to use his physical size and intimidation to dissuade future violations. Reflecting on the last time

102 he was surety, Miller believed that the police “get cocky and play the game ‘guilty by association’ and make assumptions and don’t care what the implications are,” which is why he never called the police on his friend who continually had issues with compliance. In this way, sureties were less willing to report the accused if they held negative beliefs towards the law.

Other sureties attributed their tendency to report on their legal obligation to do so. Abigail and Daniel explained that they would have to report their son to the police because being a “surety has these laws and we need to take these responsibilities and be responsible. So our house has become a partial prison with conditions.” For people like Abigail and Daniel, being surety was their first exposure to the criminal justice system. Indeed, this was something that Emily emphasized when she explained why she reported her son for breaching a no contact order. She stated:

“He would say “what are you doing mom?” and I would say that it was my job to protect everybody in question, that’s what I agreed too. I was sad when I had to report him to the police. Sad I was handing him over, sad he put me in the position that I had to hand him over. It was very difficult, I could cry now. I had no control, if he wants to contribute to society, he needs to understand there are rules. It’s society, there are rules. I wanted to show that there are consequences to not following rules. Sometimes I thought he thought his mental health was an excuse but I told him, it’s not an excuse. He’s upset because his wife’s life is continuing but his isn’t. I told him, you can have that but you chose this. This was our very very first time, we never had much experience [with the criminal justice system]. We lived very straight forward, I only had one ticket, maybe 40 years ago.”

Rather than question the law, Emily’s unwavering faith in it encouraged her to bring her son to the police so that she could teach him a lesson about the importance of rule following. Kersen also put faith in the power of the law to dictate behaviour. He believed all of his son’s conditions were important because “if the court decides that these things will get him into trouble all the time then these are there to prevent him from that.” Although he allowed his son to commit minor breaches (see above) and took issue with the level of responsibility expected by the court, he was still prepared to call the police if his son broke the law or disregarded his rules completely. Like Kersen, Rod also deferred to the power of the law in his decision to report the accused. Even though he might empathize with his friend for breaching, he said,

“I would have to go to the police station and let them know. It’s up to them to decide if they will go after him. Small infractions lead to bigger ones, so I

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don’t want him to take me for granted… If I found he’s at his girlfriend’s house I would go straight to the cops and tell them. I would take him to the police station with me. If they decide and just talk to him and release him, then okay, at least the police are aware and it’s serious.”

Similar to Emily and Abigail and Daniel, Rod had minimal interactions with the law prior to becoming surety. During our initial interview he told me that “just being in here [the court house] makes me feel uneasy, I don’t like dealing with lawyers or criminals.” The constraints of the law also prompted Josephine to consider reporting her son if he ever breached. The financial consequences that would result from not doing so forced her to report her son to avoid putting her family into financial jeopardy.

Wanting to comply with the law was therefore a motivating factor in informing the police about bail breaches. As mentioned previously, Genie reported her niece to the police for a breach that the court’s basically allowed. “I, the surety, was not respected,” she divulged, “I knew she had been in contact with the co-accused and I wasn’t comfortable covering it up because it doesn’t change my obligations even though it was a glitch. I told her I wasn’t comfortable proceeding so I revoked and called the police and told them I was aware of a breach.” Like with other sureties, Genie also complained about the difficulties of revoking. She said

“I knew there would be a lot of hassle to revoke. It’s a time commitment to revoke bail. I had to wait until court was in session. I took 3 hours out of my work day to revoke. I was disappointed but there wasn’t anything more I could do. She wanted another chance but I think it would’ve been worse. It would have given her permission to do more. It’d be like I’d turned a blind eye and this wasn’t going to happen. I wanted to do the right thing regardless of the money. $2000.00 is nothing for me. It may matter for some people but it’s my job qualifications that are more important.”

Wanting to do the right thing and protect her reputation motivated Genie to turn her niece in to the police despite the “hassle.” For sureties like Clayton the potential annoyance of reporting or revoking was worth it because he viewed himself as “a person who lays down the law.” When I asked him about whether he would report a breach, he said, “he [the accused] knows me, I would never give him a warning…I understand that some would because he’s a friend and you don’t want to see them in trouble. But you do the crime, you do the time. You need to know right from wrong. It’s my responsibility to uphold the law.” The obligation and duty that some friends and family felt as surety translated into a zero tolerance mentality about reporting non-compliant

104 behaviour. For these sureties, the transcendent quality of the law in their daily lives influenced how they enforced court orders.

5.4.1.5 Further Considerations: Revoking vs. Reporting

While some sureties saw little difference between reporting and revoking, others claimed they would do one and not the other. For instance, Abigail and Daniel firmly believed it was their duty to phone the police yet could not foresee a scenario in which they would ever revoke. For them, revocation posed a distinct set of challenges. When asked about revoking, Daniel acknowledged that they would likely not “because that would throw him back into prison. Obviously, he’ll have to go there sometime but we don’t know how long a surety is.” Consequently, unlike reporting non-compliant behaviour, which they felt was out of their control, sureties like Abigail and Daniel did not want to be responsible for sending their son back into custody if they revoked. For Darla, the love she had for her daughter also prevented her from revoking. She reasoned “it depends on the circumstances but probably not [revoke]. I’d be angry with her but she’s my daughter, and it’s unconditional love. I’d be very angry and disappointed and let down that she put me in that position but I wouldn’t stop loving her.” Similar to Darla, Kersen agreed that he would probably never pull himself as surety because as he disclosed “He’s my son and I like to stand beside him, regardless if he’s wrong or right. I’ll stand beside him and let the court decide that [if I shouldn’t be surety].” Suzanne and Debbie also agreed that they would report but not revoke. For these sureties, revoking was not a viable option because it meant that the accused would be placed back in custody even if they did not breach. To avoid this, these sureties only felt obligated to report the accused rather than revoke.

On the other hand, some sureties were more prepared to revoke themselves as surety than to report for bail violations. Compared to reporting breaches, revoking does not lead to any criminal charges, it only sends the accused back into custody. This was a more acceptable option for sureties who no longer wanted to be surety but did not want to add to the accused’s criminal record or call the police. For example, Camilla explained that unless it was for something extremely serious, she would not call the police because

“If I phone the police, she’s getting arrested and she’s going away for 3 years (that’s what the sentence for her charge is). I couldn’t live without her for that long. I couldn’t stab her in the back because it’s family and

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not for something so petty. She has a daughter. I couldn’t let that happen to her either."

Because the money she put up was important to her, she would still revoke for less serious infractions. Other sureties discussed wanting to revoke due to the strain caused by having to enforce the court’s conditions. According to Samantha, “They need to lighten the stipulations otherwise in 2 weeks (his next lawyer meeting), I’m pulling my bail.” Despite the difficulties Samantha experienced being a surety, she saw revoking as her only option to minimize her financial obligations and deal with the accused’s actions. As such, the distinctions made between revoking and reporting were fueled by the surety’s desire to simultaneously balance their role as surety and their relationship to the accused.

5.5 Discussion According to the law, sureties must report any and all bail violations to the police. Unlike probation or parole officers who have significant discretionary abilities, sureties legally have no choice but to call the police, despite their feelings towards the accused. The limited freedom sureties have to reach this decision likely contributes to why this is often considered “one of the most onerous forms of release” (R. v. Antic 2017 para 67g). Living with someone who is conditioned to identify and report all non-compliant behaviour amplifies the court’s ability to control the actions of the accused, increasing the likelihood of breaches. However, as discussed in Chapter 4, this rests on the assumption that sureties are methodically following the rules of the court. Indeed, the results of the current chapter suggest that sureties take on a more discretionary role when reporting breaches than the court’s expect. The “pull of bail” emphasizes the financial costs associated with not reporting and while this was a concern for some sureties, it was certainly not the only (or main) one. Decisions to report an accused were therefore based on a weighing of the perceived seriousness of the breach, the fairness of conditions, the accused’s actions, and the helpfulness of law enforcement.

Similar to prior research on reporting ((Bachman, 1998; Felson & Pare, 2005; Shah & Pease, 1992; among others), several sureties referenced breach seriousness as an important consideration when deciding whether to report. Like crime victims, sureties used more discretion when they considered the breach to be minor. Irrespective of their relationship with the accused, experience as surety, and/or trust in the law, nearly all sureties reported they would disclose a

106 breach if the accused put themselves or some else at risk. In a handful of cases, sureties allowed minor breaches to occur because they did not see them as being criminal in nature. This may be reflective of the limited knowledge a few sureties had of the law, supporting Mayhew et al’s (1979) early hypothesis that some people neglect to report criminal actions because they do not view them as illegal. At the same time, these decisions were commonly informed by the sureties’ own feelings towards the fairness of the conditions. By excusing petty violations, sureties employed their own sense of justice based on what they saw as appropriate. Except in a small number of cases where the surety completely disregarded court conditions, this often meant that sureties permitted small allowances in the conditions like extending curfew or facilitating social drinking. Not only did this make being on bail more tolerable for the accused, it also sometimes gave sureties the feeling of having greater control over the actions of the accused.

The logic involved in reporting breaches challenges current theoretical discussions that tend to assume that the law takes on a precedential role in the lives of those who come forward as surety. Certainly, several sureties did view the law in this way, especially those who had limited prior interactions with it. Deferring to the law’s power to determine right from wrong, these sureties showed very little hesitation when asked if they would report the accused. Others also expressed fear of experiencing the consequences of the law, whether that be having their bail amount forfeited or their reputations jeopardized. In these cases, sureties commonly conceded to the law to provide legitimacy for their actions (Ewick and Silbey 1998). While this level of cooperation helps sustain the “autonomy of the law’s authority” (Ewick and Silbey 1998: 76), not all sureties used and experienced the law in the same way.

Distrust in the law and the criminal justice system more broadly prohibited several other sureties from reporting the accused to the police except for extenuating circumstances (i.e. the accused was violent). Although all sureties make a promise to the court, negative past encounters with the law dissuaded some sureties from fulfilling that promise outside the courthouse. Consistent with past research (i.e. Rosenfeld et al 2003; Solis et al 2009), sureties who demonstrated more legal cynicism were less inclined to report non-compliant behaviour, seeing minor breaches as trivial and not deserving of additional consequences. With that said, even those who reported that they were skeptical of the criminal justice system still gave scenarios in which they would call the police. This supports Bell’s (2016: 338) conclusion that legal cynicism “is a dynamic strategy

107 that is part of a larger repertoire about legal authorities, and it operates differently depending on the nature of moments of crime and disorder.” The role the law plays in the lives of sureties is thus an important factor in determining how willing they are to report, complicating theoretical advancements that depict sureties as quasi-police or extensions of the penal state (Myers 2019; Schumann 2018). Compared to the results of the previous chapter, sureties appeared more reluctant to report than to supervise, suggesting that sureties may be more prepared to adopt some of the court’s demands than others. These results also challenges current assumptions that surety releases are always overly onerous. While the consequences can be onerous if the surety acts according to the law, not all sureties were prepared or wanted to be the court’s “civilian jailers” when it came to breaching the accused.

Instead, many sureties felt motivated by the hope that being on bail would act as a turning point in the accused’s life. By coming forward as surety, friends and family had specific visions of what they expected of the accused, which often differed from those of the court’s. Indeed, as outlined in the previous chapter, these expectations saw friends and family blend elements of both surveillance and support in their attempts to supervise the accused and encourage compliance. In addition to ensuring the accused followed their conditions, sureties also employed specific techniques to help them become more productive members of society. The results of the present chapter indicate that how well an accused lived up to their surety’s expectations was a common factor in reporting decisions. For example, if the accused was making strides towards improvement, sureties seemed less inclined to breach the accused for smaller infractions. Some sureties even allowed breaches to occur because they thought it would help keep the accused from committing a more serious offense and ending up back in jail. Avoidance of the law in these cases highlights the productive quality of penal discipline (Foucault 1977). Rather than strictly following the rules, these sureties sought to transform the actions and behaviours of the accused to be more in line with normative expectations. Encouraging the accused to get clean, be a ‘better’ parent, or to find employment was therefore more important for some sureties than making good on their promise to report court violations.

Conversely, sureties viewed accused who deliberately broke their conditions and made no effort to get sober, find employment, or contribute to the household as less deserving of leniencies, increasing their odds of either reporting or revoking. Although some of the sureties who employed care-oriented strategies were less inclined to breach the accused for overall good

108 behaviour, this failed to have a similar effect on accused who declined to change. The calculations that sureties employed when defining bail breaches demonstrates how much value they placed on their own hopes for the accused. The initial optimism that some sureties experienced was often replaced with disappointment and frustration that the accused could not or would not respect their wishes. The lack of control sureties had over the accused subsequently increased their willingness to report, supporting Rose et al’s (2004) hypothesis that parents who feel hopeless regarding their child’s future will be more inclined to give them up to the authorities. These results further highlight Gottfredson’s and Gottfredson’s (1988) suggestion that reporting is contingent on the reporter’s goals. Remember that sureties have distinct goals in coming forward that aim to maintain familial bonds and encourage pro-social behaviour. Sureties appeared more prepared to report when they believed jail was the only option to achieve these goals. Indeed, some sureties explicitly stressed the value of sending the accused back to jail by teaching them a lesson or upholding public safety. Accordingly, having the legal authority to report or revoke provided sureties with the opportunity to discipline the accused for failing to make appropriate life changes. Leveraging their power over the accused potentially conceals how coercive surety releases can be. Despite being well-intentioned, friends’ and families’ use of care-oriented strategies runs the risk of becoming overly punitive if they threaten to report or revoke when the accused fails to make adequate life changes.

Decisions to report or revoke must therefore be considered in light of these relationship dynamics. While the courts believe that both sureties and accused will comply with court orders to avoid financial reprisal, there is often more at stake in these relationships that prompts further consideration. One of the most common reasons for coming forward as surety is to keep families together and the accused out of custody. The monetary threat that is placed upon sureties prompted some to consider reporting or revoking, especially if that amount made it difficult for them or their family to make rent, pay groceries, etc. Yet, many sureties spoke of weighing the financial costs against the costs of imprisonment. Abigail, Daniel, and Jack told me how their respective sons were extremely fearful of going to jail. While all said that they would report the accused if he breached, Abigail and Daniel were acutely aware of the damage this would cause, telling me that prison “is really the undesirable consequence more so than the financial side of it.” During our interview they recounted having watched several YouTube videos with their son

109 about the dangers of jail. For them, the price placed on the accused’s bail was inconsequential to the price of being in jail.

Familial bonds also compelled some sureties to turn a blind eye towards breaches, as the guilt of putting a family member or friend in jail outweighed the possible financial punishment if the accused got caught. As a surety, family and friends are caught between following their own moral order or that of the law (Elster 1999). The previous chapters describes how being surety was often the most recent attempt by friends and family to help the accused make a positive change. While Black (1976) insists that the close relational distance between reporter and offender prevents crime reporting, the relationship history between surety and the accused actually complicates decisions to report. For those who valued the law or felt they no longer had control over the accused, reporting was necessary and reflected their own moral code regarding proper behaviour. For others, however, the thought of reporting or revoking violated their own prevailing norms about what a good friend or parent would do. In these cases, the surety was committed to keeping the accused out of custody and on the right path despite potential breaches. It also explains why some sureties viewed revoking differently from phoning the police. Wanting to protect the accused and avoid feeling guilty for sending the accused back into custody guided decisions to report or revoke and highlights the role of emotions when making these decisions. While becoming a surety is a transformative process that sees friends and family assuming a new role in their loved ones lives, the ties sureties have to the accused presents unique challenges when it comes to reporting.

For sureties who are prepared to revoke or report, there are system-related barriers that make these options less viable. As some sureties described, the process of revoking is time consuming. Not only do sureties have to be physically present in court to revoke, the process can take several hours because they have to wait to be heard by a Justice of the Peace. For some sureties, the distance between their home and the court prevented them from revoking. In particular, employment and mobility issues made it difficult for sureties to revoke because it could only be done between the hours of 9am-5pm. Reporting a loved one to the police caused similar issues. During our interviews, sureties often disclosed negative experiences reporting the accused to the police (both past and present). In addition to being treated poorly, some sureties felt like they were made to feel responsible for the breach. As Schumann (2018) notes, reporting an accused to the police is sometimes taken as a sign by the Crown that a potential surety is not well-suited to

110 the task. However, as several sureties noted, if an accused wants to breach, they will find a way to do so irrespective of their sureties efforts. Thus, asking sureties to report an accused while simultaneous chastising them for actually doing so is counter-productive and undermines the pull of bail. If the courts want sureties to actively report or revoke, the system needs to make it easier for sureties to come forward.

5.6 Conclusion

Beyond the enforcement of conditions, sureties are also obligated to report all violations to the police. Assessing a surety’s willingness to report allows us to further understand factors that may lead someone to reject or adopt the norms of the court, granting additional insight into the process of secondary prisonization (Clemmer 1940; Comfort 2008). Although the monetary amount sureties promise to the courts is supposed to increase the costs of not reporting, friends and family commonly used the consequences of non-compliance to enact their own form of penal justice based on their personal views of the law, the context of the breach, the fairness of the conditions, and the accused’s actions. Like other studies on crime reporting, the context of the breach as well as the surety’s overall perception of the criminal justice system played an important role in dictating a surety’s willingness to disclose court violations. The ability of the accused to live up to their surety’s expectations also factored into these decisions, further demonstrating both the coercive and productive nature of surety releases. How the actions and reporting habits of sureties impacts their relationships with the accused is explored in the next chapter.

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Chapter 6 The Bail Bond: Defining Surety-Accused Relationship Adaptations Post Bail Release Introduction

Many criminological theories – social bond, life-course, social learning and general strain – emphasize the importance of social bonds in reducing crime. Yet, criminal justice interventions, like incarceration, often influence both the strength and quality of these bonds (Christian and Kennedy 2011; Comfort 2008; Mowen and Visher 2016). Incarceration and subsequent release from prison can disrupt and strain social ties (Christian and Kennedy 2011; Mowen and Visher 2016) by physically removing the offender and creating unrealistic role expectations within the relationship (Gideon 2007). At the same time, researchers show that it can also be a transformative experience that encourages prisoners’ friends/family to invest more time in the relationship in the hopes that they will be reformed (Christian and Kennedy 2011; Comfort 2008, 2016). Documenting these effects is important in understanding the level of support friends and family provide re-entering persons. For individuals returning from prison, having the support of family, in particular, can lower substance use and offending, improve mental health outcomes, and decrease reincarceration rates (Bahr et al., 2010; Mallik-Kane & Visher, 2008; Wallace et al., 2016; Western et al., 2015). Yet, changes that result in these relationships during incarceration have been shown to affect family members’ willingness to support the prisoner post-release. Indeed, Christian and Kennedy (2011) indicate that families who see incarceration as having a positive effect on their relationship are more likely to continue their support of their loved one while families who view incarceration as disruptive are exceedingly more ambivalent about their ability to continue their support. With limited social support, returning persons are at greater risk of making poor adjustments and subsequently reoffending.

Bail, like imprisonment, also has the potential to shape relationship dynamics, especially in cases where the accused is released under the control and supervision of a surety. Unlike imprisonment, surety releases strategically position an accused’s loved one to become their civilian jailer. As discussed elsewhere, surety releases are characteristic of broader trends in criminal justice policy that see friends and family of accused individuals take on the crime control functions traditionally carried out by penal agents. With the penal state continuing to

112 operate “in nuanced ways and through intermediary sites,” like the family, “to control criminalized people in a host of overt and obscured ways,” (Kaufman et al 2018: 490) it becomes increasingly important to understand how this shift in responsibility affects the surety-accused relationship. For accused individuals, relying on friends and/or family for emotional and financial support takes on greater significance as they deal with the uncertainty and potential fall- out from being criminally charged. As such, this chapter addresses two main questions: 1) In what ways do friends’ and family members’ relationship with the accused change as a result of being surety? And 2) To what extent do these adaptations influence friends’ and families’ willingness and capacity to continue their support of the accused in the future?

This chapter builds on the cumulative data from the previous three chapters, using both the initial and subsequent interview data from thirty-six participants to note any similarities and/or differences in how friends and family describe their relationship with the accused since becoming sureties. Results show that being a surety had three primary effects on relationships - volatile, damaging, and constructive – characterized by the strength and quality of the relationship prior to release, divergent role expectations post-release, and the weight friends and families felt shouldering the responsibilities of being surety. The circumstances of release, including the types of conditions imposed, the length of release, and whether the surety revoked or reported the accused, also resulted in changes to relationships. These adaptations subsequently informed the surety’s desire and ability to continue their support for the accused. For ten participants being a surety created further instability in their relationship with the accused, with most expressing a reluctance to help the accused in the future. Over one-third of the sample reported that being a surety had a damaging effect on their relationship with the accused and, as a result, they would not support or help the accused again. The rest of the participants, however, emphasized the constructive aspects being a surety had on their relationship with the accused, reporting stronger bonds and an increased investment in the accused’s life. While having a surety opened the door to further support for some accused, it closed the door for others. Defining the effects of sureties releases on accused relationships is important because each “adaptation” has specific implications for the friends’ and family members’ willingness and capacity to support the accused moving forward. The results therefore draw attention to how shifts in the way we control and punish subsequently impact personal relationships, which can not only contribute to but also minimize the revolving door that currently characterizes bail in Ontario.

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6.1 Friends, Family, and the Penal State

Having the support of friends and family has been attributed not only to successful re-entry post- release but also to long term desistance from crime (Berg and Huebner 2010; Martinez 2006; Mowen and Visher 2015, 2016; Shapiro and Schwartz 2001). While families, in particular, are viewed as an important social unit in supporting offenders and easing the transition from prison, they are commonly transformed into quasi-police and secondary prison guards under current criminal justice policies that hold them responsible for preventing crime (O’Malley, 1999; Rose 2000). As “proxies of the state,” parents are compelled to “invest heavily in disciplinary technologies and knowledge” (Simon 2007: 201). In the United States, for example, parents of young offenders are routinely held accountable for the actions of their children and can face legal consequences if their children fail to abide by their probation orders (Cook and Gordon 2012). Families of adult offenders are also expected to assist probation officers in the prevention of crime, providing the offender with daily reminders, encouraging and recommending treatment, withholding property (i.e. car keys), and providing access to pro-social activities (i.e. fishing) (Miller, Copeland, and Sullivan 2015; Vidal and Wooland 2017). By assuming this role, the home has become an easier target for increased criminal justice intervention, expanding the boundaries of traditional law enforcement (Kaufman, Kaiser and Rumpf 2018; Simon 2007; Schumann 2018).

This form of interventionist control, while typically seen as responsibilizing criminalized people in ways that extend beyond formal sanctioning (Kaufman, Kasier, and Rumpf 2018), also governs the lives of associated friends and families. As the penal state continues to download crime control duties onto ordinary citizens, friends and families are forced to reconfigure their relationship with criminalized individuals via state directives. Comfort (2008) describes the extent to which prison rules changed women and their relationships with incarcerated partners. By taking on the role of secondary or surrogate correctional officer, many women internalized institutional policies, which manifested in “altering their style of dress, the food they eat, and the hours they keep, to valorizing the benefits of enforced celibacy and the correctional chastising of men” (Comfort 2008: 186). Kaufman, Kaiser and Rumpf (2018: 478) similarly note the continued state control of women parolees through non-governmental organizations. In keeping with policy directives, these organizations transformed into moral regulators that have “ultimately advanced a more lasting version of the criminal legal system’s framework linking

114 women’s drug use, criminality, and moral worth.” Surety releases are also a formal manifestation of this trend as the courts hold friends and family legally accountable for the actions of individuals accused of crimes. The courts incentivize sureties to assume their legal duties by threatening financial forfeiture if the accused breaches, absconds, or commits a new offense. Previous chapters demonstrate that while sureties cannot and should not be viewed purely as legal apparatuses, they do assume greater control over the accused by way of their new role. Drawing on research on the repercussive effects of imprisonment on social bonds, the remainder of this section theorizes whether and to what extent these shifts from formal to informal modes of surveillance alter the relationship friends and family have with the accused and their willingness to provide on-going support.

6.2 Family and Peer Support: a Protective Force

Familial bonds are said provide the best level of support for adult offenders who have just been released from prison and are trying to desist from crime (Christian 2005). Not only do families help bridge the gap between prison and the community (Hairston, Rollin, and Jo 2004; Western et al 2015), they also provide emotional (Philips and Lindsay 2011), material (Laub and Sampson 2003; Western et al 2015), and social support (Uggen, Manza, and Behrens 2004), which can lower rates of recidivism (Bales and Mears 2008; Klein, Bartholomew, and Hibbert 2002; Naser and La Vigne 2006). Having the support of family is therefore vital to the criminal desistance process. For Sampson and Laub (1990; 1993; Laub and Sampson, 1993; 2003) desistance is the culmination of a “variety of complex processes” that allow for continuity and change within offending behaviour. Unlike Gottfredson and Hirschi (1990) who argue that criminality is stable over the life course, Sampson and Laub (1993) stress the importance of ‘turning points’ in an offender’s criminal trajectory that may eventually lead to desistance. While employment and marriage are key life events that pull persistent offenders from crime, the strength and quality of adult relationships is more important than simply having a spouse or being employed and are thus considered significant predictors of criminal desistance more generally.

Drawing on the work of Sampson and Laub, considerable research has been dedicated to understanding the effect of family and peer support before, during, and after incarceration on an individual’s likelihood of recidivating. Incarceration has long been acknowledged as an acute

115 stressor in a criminalized person’s life (Schnittker, 2014; Schnittker, Massoglia, & Uggen, 2012), making social support an important buffer against the negative social (Uggen, Manza, and Behrens 2004), health (Visher and Travis 2003), and financial (Laub and Sampson 2003; Western et al 2015) impacts of imprisonment. It is common for ex-offenders to be homeless and lack employment prospects following release so having a strong social network can offset the mark of a criminal record by providing housing and monetary assistance (Dumont et al. 2012; Fleisher & Decker 2001). As such, families, and to a lesser extent friends, are commonly viewed as a protective force in preventing reoffending upon release. Indeed, Bahr and colleagues (2010) note that positive family and peer supports are related to parole success (which they define as being discharged from parole in three years after release) and desistance from drug and criminal activities. Based on their qualitative findings, they suggest that having supportive and encouraging friends and families is more likely to foster successful re-entry than attachments to pro-social others because they assist parolees in avoiding triggering locations and people. Across most studies, individuals overwhelmingly and consistently cite family support as being an important factor in the process of release and integration (see Nelson et al 1999; Travis 2005; Visher 2007), with offenders who maintain contact with their families during imprisonment showing lower rates of recidivism overall (Adams and Fischer 1976; Glaser 1969; Hairston 2002; Holt & Miller 1972; Klein, Bartholomew and Hibbert 2002; Ohlin 1954; Sampson and Laub 1993).

6.3 The Impact of Criminal Justice Interventions on Relationship Ties

Despite the insulating properties family and peer support have against the adverse effects of prison, less research has explored the distinct ways support structures change as a result of criminal justice interventions (Mowen and Visher 2016). Emerging research on the collateral consequences of imprisonment show that incarceration can profoundly shape family and peer relationships. Comfort (2008, 2016) finds that while imprisonment stripped wives and girlfriends of time with their men, many saw a positive change in their partner’s attitude and demeanor, which increased their desire to maintain a close relationship. Corroborating Comfort’s (2008) work, Christian and Kennedy (2011) note that imprisonment can be a transformative experience. By asseessing the secondary narratives of imprisonment through fifteen in-depth interviews with prisoners’ families, they discovered that families who pointed to “major deficits in the

116 relationship and/or the inmate’s behavior prior to the incarceration” viewed incarceration as a period for potential change (Christian and Kennedy 2011: 386). Often, the family had already seen some evidence of change in the inmate and expressed hope that he would continue to move in that direction during incarceration and upon release (Christian and Kennedy 2011). Like the women in Comfort’s (2008) study, these family members were motivated by signs of change to invest more time in their relationship with the offender.

Following these findings, it stands to reason that surety releases could also have a positive impact on surety-accused relationships. Having a friend or family member act as a surety not only increases support for the accused, it also has the potential to exert a positive influence on the accused’s routine activities, preventing them from absconding, reoffending, and/or interfering with the administration of justice. Considering the aim of many friends and family is to assist in the rehabilitation of the accused, it is possible that living with a surety and following the routine and discipline of the household could provide the necessary ‘hook for change’ that will help an accused complete bail without accumulating additional charges (Giordano et al 2007). Although this generally overlooks the role of agency, several studies suggest that having strong attachments to informal social controls weakens ties with anti-social peers and encourages new ties with conventional individuals (Osgood and Lee 1993; Osgood et al 1996; Laub and Sampson 2003; Bryne and Trew 2007). This may subsequently foster stronger bonds between the surety and the accused, motivating the surety to invest more in the accused’s future.

Yet, the transformative or positive influences that some families reported may not extend beyond the in-prison experience. Both Comfort (2008) and Christian and Kennedy (2011) relied almost exclusively on interviews with families whose loved ones were still in custody. Even Comfort herself questions “how genuine these claims of assistance and encouragement are, since separation during imprisonment and hope for the future may lead women to aggrandize the degree of their retrospective or prospective support” (Comfort 2008: 189). As expected, several institutional barriers exist that prevent sustained familial contact while in prison, leading to a decline in family interaction and support overtime (Mowen and Visher 2016). Once released from prison, relationships can further deteriorate due to discrepant role expectations between families and the re-entering person (Bir et al 2015; Gideon 2007). According to Gideon (2007), families commonly pressure offenders to abstain from drugs/alcohol, which resulted in higher levels of relapse within his sample. Evidence from the previous two chapters indicate that despite

117 initial optimism from some sureties that being released on bail would spark a turning point in the accused’s life, failed expectations increased their likelihood of reporting the accused for breaching. It is therefore possible that bail creates similar tensions between the accused and their surety by setting up unrealistic expectations, leading to overall declines in the relationships.

Indeed, not all the families in Christian and Kennedy’s study (2011) were optimistic about their future with their loved one, emphasizing both the disruptive and precarious effects imprisonment has on relationships. Rather than provide hope for a turning point, the majority of families viewed incarceration as disrupting what was a strong, positive, and supportive relationship pre- incarceration. Others felt uncertain about their future with the offender, believing it is unlikely that incarceration would exert a positive influence on the offender’s behaviour. The heavy toll incarceration exacts on the very relationships re-entering persons rely on can prevent their access to “housing, emotional support, financial resources, and overall stability” (Visher et al 2004). In his study of 39 male offenders recovering from a drug or alcohol addiction, Gideon (2007) found that the transition from prison to the community created unforeseen tensions within the family, as parents and spouses were often ill equipped to deal with the offender and his problems. As a result, several families reported harbouring feelings of distrust and anger towards the offender, which negatively affected the quality of support they were able to provide.

The conflict that arises in relationships following imprisonment is often related to higher odds of recidivism over time, including alcohol and drug use (Mowen and Visher 2015). Bahr et al (2010) found that unsuccessful parolees commonly cited issues within their families that made them reoffend. Here it is suggested that family members and intimate partners either encouraged the parolee to engage in criminal behaviour (such as using drugs) or put them in tempting situations. This often resulted in “problems, stresses, and temptations” within family relationships that made success difficult (Ibid. 686). As Horwitz et al. (1998: 125) maintain, “the same intimate ties that serve as sources of social support can also be sources of much misery, conflict, and distress.” Drawing on findings from the life course literature, it is clear that poor social bonds and a lack of positive support post-release can negatively affect those trying to desist from crime. Thus, rather than simply protect offenders from slipping back into a life of crime, families can also create criminogenic situations that increase recidivism (Boman and Mowen 2017; Mowen and Visher 2016).

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The secondary prisonization (Comfort 2008 – see chapters 4 & 5) that some family and friends undergo to become surety may have similar disruptive or precarious effects on their relationship with the accused. As sureties, friends and family are transformed into civilian jailers who are responsible for enforcing court orders and controlling the accused. In many cases, the task of finding appropriate medical treatment for the accused falls onto the surety, who may not have the expertise necessary to carry out this task. The results from Chapter 3 indicate that rehabilitation was an important goal among sureties who often recommended and encouraged counselling and addiction management. According to some sureties, not all accused were receptive to these demands, which may minimize the willingness of friends and family to offer additional support. Many sureties also employed tactics that focused on the control and surveillance of the accused, such as monitoring personal electronic devices (i.e. cellphones, computers). The use of such strategies, while encouraged by the courts, may put strain on relationships and increase the likelihood of conflict between the surety and the accused. The position that sureties are placed in to report the accused for non-compliant (though not always criminal) behaviour may hinder the accused from assuming the positive self-identity needed to make the types of change that sureties are hoping for (Giordano et al 2007). Stressors that develop within relationships due to having a surety may generate criminogenic situations and make the accused more vulnerable to breaching.

Taken together, the extant research demonstrates that criminal justice interventions can have both beneficial and detrimental impacts on the relationships criminalized people have with their friends and family. This can in turn affect the level of support accused individuals receive from their social networks. To date, most of these studies focus almost exclusively on the collateral consequences of post-conviction sentences, namely imprisonment, on social relationships. Yet, as friends and family become more involved in carrying out the crime control functions typically reserved for law enforcement and corrections, it becomes increasingly important to understand how these shifts in responsibility also affect important relationship bonds prior to conviction. The remainder of this chapter draws further attention to how the ensuing responsibilization of friends and family as sureties shapes their relationship with the accused and their willingness and capacity to continue support in the future.

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6.4 Findings

Of the 36 sureties interviewed, roughly one-third found that being a surety had a constructive effect on their relationship with the accused (See Table 1). Generally, these relationships were described as being okay or good prior to becoming surety. Improvements to the relationship were commonly attributed to being a surety, as it gave the participant more time to get to know the accused, increasing their investment in the accused’s life. Those who reported a positive effect in the relationship were much more willing to continue their support for the accused in the future by either being surety again or offering additional resources like a place to live. In most cases, the surety reported that the accused had, for the most part, been complying with their conditions and/or making an effort to change, meeting their initial expectations. Compared to the other adaptations, people who saw an improvement in their relationship tended to have more access to social supports that helped offset some of the burden of being surety. Unsurprisingly, none of the sureties who identified a constructive effect reported or revoked.

For families who reported strain in their relationship with the accused due to issues that existed before becoming surety, the process typically made these relationships more volatile, putting additional stress on the relationship. Although these participants still felt some obligation to help the accused, they had little hope that bail would be a turning point and thus questioned whether they would be as willing to come forward in the future. Despite this uncertainty, these sureties were still not ready to completely cut the accused off even though the accused was generally not compliant. Indeed, the four sureties in this category who breached or pulled bail still said they would consider helping the accused in the future or at the very least, stay committed to their relationship with the accused.

Lastly, one-third of the sample reported that being surety damaged what was a strong relationship with the accused prior to release, sometimes beyond the point of repair. The main difference between cases coded as damaging versus volatile was that the surety emphasized a decline in the strength of their relationship with the accused since being surety, citing issues that only began once the accused was released. They also had considerably less support from friends and family in their role as surety, which sometimes contributed to the resentment they described towards the accused. Contrary to their initial expectations, the accused rarely made an effort to abide by court orders and turn their lives around. Thus, in most cases these sureties expressed

120 that because the accused continued to make poor choices they were undeserving of further support. Of the sureties who saw a damaging effect, four either reported or revoked and refused to offer any additional assistance.

Table 3: Primary Effects Descriptors Primary Effects Percentage Description Damaging 13 (36%) Pre-release relationship described as being positive; Divergent role expectations between accused and surety; Surety received minimal social support in their role from others; Unwilling to offer future support; Relationship damaged often beyond reproach. Volatile 9 (25%) Pre-release relationship described as being unstable; Surety suspects the release will not be successful; Uncertain about future support though relationship still relatively intact. Constructive 14 (39%) Pre-release relationship described as being okay or better; Convergent role expectations between accused and surety; Surety received social support in their role from others; Willing to offer future support; Post-release relationship described as being improved.

6.4.1 Damaging – “She’s on Her Own”

Just over one-third of participants reported that being a surety had a damaging effect on what used to be a strong relationship with the accused. Participants were more likely to indicate that being a surety led to a decline in their relationship if they had high hopes about turning the accused’s life around, they received minimal social supports in their role and the accused had little interest in following the court’s rules. I interviewed sisters Brooke and Brittany together as they waited to get an update on Brooke’s boyfriend’s legal case. Brooke had previously been surety for both her sister and boyfriend, though she spoke mostly about her experience with her sister. Prior to being surety, Brooke had a strong relationship with her sister Brittany, describing it as respectful and congenial. After becoming surety, however, her relationship with her sister was “terrible, she didn’t think she needed to listen.” When Brooke told me she thought her sister would have been more mindful about her actions while released, Brittany laughed and said “I didn’t think you’d phone the cops, but I get why you did now.” The challenges of being surety were acutely felt by Brooke who had limited support from outside friends and family, which made going to work extremely stressful because she had to leave Brittany unsupervised. While Brooke began to resent her sister for transgressing court rules, their relationship declined further

121 when Brooke reported her sister to the police for breaching. At the time, Brittany was extremely mad at Brooke. Feeling betrayed, Brittany blamed Brooke for being back in custody. “She didn’t talk to me for a long time after that,” Brooke admitted, who felt she had to follow through on her promise to the court in order to show her sister the consequences of her actions. Although they are now on speaking terms (Brittany got sober while in jail and is now pregnant), both agreed that their relationship is not what it once was. Throughout the interview, Brooke was adamant that she would never be Brittany’s surety again or go out of her way to provide extra-legal support out of fear of being let down again. As a result of this, Brittany ended up spending almost a year in custody.

Like in Brooke’s case, the tensions that appeared when the accused failed to comply often took a toll on the surety’s relationship with the accused. When I first met Lydia, she strongly believed Josh would not do anything to put her in legal jeopardy. Similar to Brooke, Lydia described her relationship with Josh as being a respectful one, saying

“I’m not his mom so he’s going to listen to me better than my own son [she was previously surety for her son and had a very difficult time]. I can talk him down more because my son always wanted to do the opposite of what I said. We’re not family, we’re friends. I think too that he’ll treat me differently than his grandma [Josh was accused of assaulting his grandma] and because I have experience with a child in trouble with the law, I can talk him down and I’m pretty strict.”

When I followed up with Lydia two months later, she like Brooke, complained of how challenging it was getting Josh to abide by his conditions and her house rules. The pressure of trying to get someone to obey court rules created constant friction in her relationship to the point where she was no longer interested in continuing her support. This was especially problematic because Lydia reported having no support in her role as surety. Instead, she believed that Josh’s mom was covering up his breaches by purposely not telling Lydia where he was. Of the relationship, she said

“It’s [being surety] ruined it totally. I will never trust anything they ever say. I’ve asked them to pick up water because they drank all my water, they never do it. I can’t count on them, they’ve made that apparent. I will never trust them, I can’t count on them for anything. Being his surety has brought that in the open, but if I hadn’t, it would have taken longer for me to find this out.”

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While Lydia was still surety for Josh at the time of the follow-up interview, she was seriously considering revoking – something she likely would have done already if the process was not so arduous. Speaking of the chances she would be Josh’s surety again, she said “I’m just disgusted, so disgusted. The lack of following the conditions, he is not trying to resolve his legal problems so I can be released of my legal obligation… I will never do this again, I just want to be left alone.” Before Lydia agreed to be surety, Josh had spent nearly a month in pre-trial custody while his girlfriend Mandy tried and failed to find a suitable surety. If Lydia did revoke, the chances that Josh would be re-released on bail were likely next to none.

The challenge of getting someone to comply with conditions put considerable strain on the relationship between the surety and the accused. Margaret, for example, had a seemingly good relationship with her friend Dan before she became surety. As she put it, “I enjoy having him around, he’s like a son.” Margaret had previously been a surety for her son, which she described as a positive experience because “it brought us closer together…he was always around and I enjoyed all the time spent together. I didn’t have to lay down the law, he was self-policed so I didn’t need to do anything.” Her experience as her son’s surety and the close relationship she had with Dan minimized any worries she had about being a surety again. When I asked her during our initial interview to speculate on what might happen to her relationship with Dan if she had to report him to police, she insisted that “I don’t believe anything will make us give up on each other.” At the time of Dan’s release, she expected Dan would respect her enough to comply by the rules and make an effort to focus on his “devotions to God.”

Six weeks later, Margaret reported Dan to the police for more than just breaching. Similar to Lydia’s experience, Dan’s actions and lack of respect made it difficult for Margaret to overlook his wayward behaviour,

“I was really disappointed in him and I expected him to behave better. It got to the point where he was, he was mouthing off to me, it was awful, at the end it was awful, I couldn’t take it. It was like get out, get out, that was that… I tried to help them but they were rage-aholics and it was toxic and awful. It got really bad here, it got really bad.”

In addition to breaching bail, Dan’s poor manners and inability to accept Margaret’s help fractured their relationship. Being surety “definitely changed it [their relationship] in a negative way,” she said

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“He just couldn’t behave himself… I don’t have anything to do with him now. There is no relationship. With his girlfriend, she came here once and we hugged and that was it. I don’t really have a relationship with her now either. You know what, I couldn’t help them the way I thought I could so she is probably in a better place now where she can get some professional help.”

Margaret mostly shouldered the burden of being surety on her own because she did not want her adult children to worry about her. She said, “It consumed me, he totally consumed me. I couldn’t go anywhere without worrying. That worry prevented me from going out, I would just stay home then.” She eventually did seek her family’s support when making the decision to report Dan to the police. “They just gave me a lot of encouragement,” she told me, “and my son said I don’t owe them anything, and you know, that was really the tipping point that I can’t do that. It just didn’t happen overnight, it was a journey with them.” Margaret subsequently refused to be Dan’s surety again, having zero desire to offer her assistance in the future. “I gave him a chance,” she said, “if he would had just been nice to me, it would have made all the difference in the world.” As far as she knew, Dan was still in custody at the time of our follow-up interview.

Johnny described a similar decline in his relationship with his friend Helen. Helen had been a long-time friend of Johnny’s so he empathized with what she was going through (he too had his own legal troubles with the mother of his children). Although he described having a “love/hate relationship” with Helen, he told me that she was someone “I’ll always be there for.” When I followed up with Johnny nearly seven months later, the police had already brought Helen back into custody for breaching her house arrest condition while Johnny was at work. Johnny learned about Helen’s arrest when he finally reported her to the police several days later. When asked why he reported amid his disdain for the police, he remarked “Cause she has no remorse, she didn’t care that she put me in a position to pull my bail or pay for her. I have three kids and I couldn’t trust her to be with them.” Johnny received no outside help in supervising Helen. Not only did he blame his break-up on being surety, it also took a toll on his day-to-day life. He said “I would lose sleep, I’d always be tired. The kids, the same thing – tired, lose sleep. I had to miss work – like when I was in court with her. Or she would send me pictures while I was at work of her bleeding and saying she was going to end it and shit. It got to a point where I would just tell her to just stop.” As such, Johnny described his current relationship with Helen as “distant.” Following her arrest, the police asked Johnny if he “wanted to come pick her up and I said fuck

124 no. Let her sit in there for a few months.” When I asked him to explain why he refused to support her, he attributed it to his experience as her surety,

“it made me like, if she were to call me, I wouldn’t answer. I don’t want the headache or the stress of it. Prior to this, I would have picked up. Now it’s for the simple fact that she’s not going to get any help because she doesn’t want it and it’s her choice. I wanted to help her before but not anymore…If things had gone easier, I’d be more inclined to help her now. But now I know I can’t help her, she doesn’t want it so if she gets in shit again, she’s on her own.”

Helen’s failure to accept Johnny’s assistance made him less inclined to help her in the future. Having to be legally responsible for someone who had “no remorse” led to a breakdown in their relationship. Helen remained in custody until her charges were dealt with.

The condition that legally requires accused to reside with their surety often created resentment in the relationship, especially if the surety was forced to support the accused financially. The court approved Samantha as an appropriate surety for Kendrick despite the fact that they were only “casual” friends. Samantha was convinced that being a surety would allow her to help Kendrick get sober and rebuild a relationship with his own children. She believed that their relationship would only suffer if Kendrick willingly breached. When I spoke with Samantha on the phone to schedule our follow-up interview, she informed me that things were not going well. During our interview, she elaborated that in addition to enforcing the court’s rules, she was also financially responsible for Kendrick, which she felt he was not grateful for. “He doesn’t clean, he eats all my food,” she vented,

“I’m chasing a toddler and trying to support two people. I have family court and my own shit going on…I have to pay for everything because he had no money until he got work. He hasn’t been paying me back this money. He has two weeks and if he doesn’t pay me back, I’m pulling my surety.”

The tension caused by Kendrick’s disregard for Samantha’s home and finances led to a collapse in their relationship. As a single mom with minimal means, she explained,

“I’m the one that’s housing you, feeding you, you should be taking care of me before your bills so that kinda pisses me off. I only have $14 to my name. He eats way more than I thought. Now he goes to work and he needs a lunch. It causes stress in the relationship.”

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While Samantha expected Kendrick to help around the house and stay out of trouble, this was not reflective of their lived reality. When I asked her to describe their current relationship, she said “It’s non-existent. Do what you’re told and that’s it. It’s like every weekend he asks to have people over and no, they’re drug addicts and they’re not coming into my home. It’s a fight. He can go out, I’ll give him a head start, but I’m calling the police.”

Although Samantha was already contemplating revoking, she affirmed that her relationship with Kendrick would further deteriorate if she had to forfeit the money she promised to the court. In her words,

“I would be betrayed. That would affect my relationship with him that’s for sure. He disobeyed my trust, he took money from my child’s mouth. I don’t think I would talk to him again. I feel like he’s getting to this point though…he needs to get out.”

Like Samantha, many sureties speculated that their relationship with the accused would be negatively affected if they lost their money due to the accused’s actions. Though none of the participants had experiences forfeiting their bail amount, many reflected that having to pay back the court would be a huge financial burden, resulting in missed rent, the sale of important personal belongings (including jewellery, cars, and homes), and the use of much needed retirement funds. Of this process, Kersen noted “your parents lose a lot of money and it causes bad feelings between you and your parents not the courts.” Despite her initial desire to help Kendrick get sober, Samantha was “over” offering her support.

Regardless of the damaging effect being a surety had on relationships, two sureties reported that they would still continue their support of the accused despite experiencing a deterioration in their relationships. Shirley, for example, saw a noticeable decline in her relationship with her son George that continued to get worse the longer she was surety. Prior to becoming surety, Shirley described her relationship with George as being “very close” yet as she shifted into a jailer-like role tensions developed that were previously non-existent. Although George was being compliant, Shirley lamented,

“Him and I had a great relationship but it’s getting worse and worse, if it keeps going on like this it will deteriorate. I think he’s getting sick of looking at me. And I’m one to speak my mind so I

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don’t usually hold much back. It’s because it’s a very strict bail thing, it’s like if he’s not working or up in his room, he’s with me the whole time. I feel like I’m his jailer, and I am, but I don’t like it. I thought a couple months OK but it’s about 9 months now.”

She went on to say,

“I mean I love him to pieces, but I wish I could see less of him. It was fine when he lived here, he lived here 9 months before this happened, that was fine. He just did whatever he wanted and I didn’t have to look out for him. It was completely different.”

The length of being surety and the strain of being her son’s jailer weakened what was a strong mother-son relationship. As a newly retired woman, Shirley was excited to travel and see the world but felt “stuck” dealing with George’s legal issues. This was made more difficult by the fact that Shirley had minimal support from her family and that her son was unfairly targeted by an unjust justice system. Though Shirley insisted she would “do it [be surety] again,” the deterioration she described in her relationship with George that began only once she became surety highlights the damaging effect this process has on network ties. Unlike other sureties in this category, Shirley firmly believed her son was innocent, which helps explain why she would continue her support as surety despite its worsening effect on her relationship.

Mia recounted a similar decrease in her relationship with her boyfriend, Liam. As his current surety, Mia stated that “lately, things are not good because of these court matters. He thinks that I’m controlling and ruining his life.” Mia hoped that being on bail would give Liam the opportunity to get sober. He, on the other hand, had no intention of stopping using drugs (based on Mia’s account). This created major problems in their relationship to the point that she believed the relationship was “already ruined.” Although she truly felt like jail was the best place for him and had anonymously reported him to the police (she tipped the police off about his whereabouts, which led to his arrest), she knew “he’d be pissed, so mad [if I wasn’t here as surety]. There’s no way I could not come forward.” According to Mia, she was Liam’s only chance of being released on bail. Because of tensions in their relationship that began once she was surety, Mia only came forward out of obligation and pressure. This demonstrates why someone might still be surety despite it damaging their relationship. Indeed, the forgoing section indicates how the inherent shifts in the roles and expectations between sureties and accused led

127 to a breakdown in many relationships, including Mia’s, which often affected the surety’s willingness to provide continued support.

6.4.2 Volatile – “We don’t want to cut him off but…”

For nine people being a surety created further instability in what were previously unstable relationships. Compared to sureties who noted a damaging effect, sureties here had a weaker relationship with the accused to begin with and described the process of being surety as complicating issues they had witnessed in their relationship prior to the accused’s release. They were also less optimistic about the prospects of being surety in their initial interviews. Though these sureties were still committed to maintaining what was left of their relationship with the accused, they also described a limit to how much they would continue helping the accused. When I met Pauline, she had just stopped being surety for her son Bradley. Pauline’s relationship with Bradley had been volatile for some time due to his severe mental health issues. Being a surety exacerbated these pre-existing tensions in their relationship. According to her, being a surety “has been stressful on the relationship. I’m angry because he’s stubborn, very stubborn and now because it’s expected that he comply, it puts more stress on these issues. I’ve always been the mean person. I put him in the hospital, I pulled his bail. He doesn’t get it because he’s mentally ill. When I became his surety, I was nice. When I pulled it, I became a monster. ”

As the only person in Bradley’s life who was able to be surety, Pauline was not prepared to come forward again unless he agreed to get treatment. Finally, two weeks later, she was back in court to be his surety “because he’s agreed to go to an out-patient program.” The desire to see her son get help was so strong that Pauline was able to overlook tensions in their relationships even though she was “so sick of being surety.” While she recognized that he was likely only conceding to her wishes to get out of jail, she felt compelled to give him another chance.

Eileen and Wyatt also noted that their relationship with their son began to deteriorate after he suffered a traumatic brain injury (TBI). At the time of our initial interview, Eileen and Wyatt said that Ethan was difficult to handle, did not listen, and was physically intimating. They were still prepared to be surety despite “knowing full well we’re going to fail. We’ll sign anything just to get him out because the alternative is visiting him in custody in an orange jumpsuit.” Two weeks after his release, Eileen and Wyatt reported Ethan for going out past curfew and stealing

128 their credit cards. While being a surety did not completely ruin their relationship with their son, having to enforce court orders further complicated what was already a tumultuous situation. According to Wyatt,

“our relationship is now strained, violent and physical at times and extremely stressful. They [the court] tend to set you up for a situation where for me, a 48 year old 5’10 out of shape guy is responsible for restraining my son, a 6’2 young healthy man. He saw me as his jailer. I felt I was beat before I started but I had to try as his parent. I hated leaving the house and leaving him alone with my wife and daughter b/c I feared for their safety…there’s been a definite change in our relationship where our regular role is to parent but now we have to walk him to the bathroom and make sure there’s no razors in there that he can cut himself with and hope when he’s napping he doesn’t wake up and leave and steal our credit cards.”

Having to impose rules on their son, who was prone to rage, put Eileen and Wyatt in an uncomfortable position because they had to be a jailer first and a parent second. Yet despite the pressure this put on their relationship, Wyatt noted that “being together 24/7 meant there were some highs – watching hockey together and chatting. I did get a lot of time with my son over the past 2 years that I wouldn’t have had if I wasn’t surety.” Overlooking the difficulties they experienced as surety, both Wyatt and Eileen agreed that they would continue to offer Ethan their full support. “Even if I was Charles Manson’s dad,” Wyatt said, “I would sign because you’re a dad and that’s what society expects.” Compared to other sureties who saw their loved one’s breach as a sign to sever ties, Eileen and Wyatt had considerable support from their families, employers, and broader community, which they agreed helped them better understand and cope with their son’s legal issues (Eileen also founded a support group for parents with children who had TBI, many of whom had experiences with the CJS). The challenge for Eileen and Wyatt was putting a plan in place that would placate the court’s public safety fears. When I followed up with them, Ethan had been in custody for over a week and they were still unsure if/when he was getting out.

For sureties like Eileen and Wyatt, reporting a loved one to the police can be a double edged sword. While it absolves them of financial reprisal, it can also prohibit them from being surety again. From the court’s perspective, breaching an accused demonstrates a surety’s commitment to their legal obligations as well as their inability to ensure compliance. Even if the surety is willing to come forward again, the courts will sometimes view them as unsuitable candidates.

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For accused who may already have limited contacts in their social network that the courts deem ‘appropriate,’ this makes being re-released in a timely manner more challenging. The uncertainty that follows a breach can have a precarious effect on surety-accused relationships. Cynthia, for example, felt she had no choice but to report her son to the police. Her son’s previous disregard for the law had caused a fissure in their relationship but she was determined to help him succeed. After two months of being surety, Cynthia breached her son for failing to comply with his conditions. “I didn’t want to call,” she told me, “but he tested me here. He had a curfew of 10pm and at 9:55pm, I’d be opening the doors, getting worried. I’d see him running down the street, you know, so he definitely tested me. I have the pressure of mom’s going to snitch on me but I have to do the right thing.” When he failed to come home on time one evening, she called the police. I only followed up with Cynthia briefly on the phone the day after she reported her son. She was upset because “everything is in doubt. I don’t know if I can be his surety again. I’m not sure they’ll let me.” As a result, she questioned whether she “let my son down” and wondered if she made the right decision. Making friends and family responsible for reporting their loved ones to the police can take a considerable toll on surety-accused relationships. Cynthia worried that her son would feel like “I turned my back on him,” which she found very distressing. During our initial interview, Cynthia said that she was “the only one he has.”

Mable, like Cynthia, also felt doubtful that her son would be re-released on bail. She was prohibited from being surety again after her son breached under her supervision. She explained that as a mom, it was “heartbreaking” seeing her son in handcuffs and not be able to offer him assistance. At the same time, she grew more and more “frustrated” and “disappointed” with him for putting them “in this mess.” This had been her third time in court in a week in a half to see if her son would be released. Each time his hearing was adjourned by his lawyer to give them more time to find a ‘suitable’ surety. In the cases of Cynthia and Mable, both women remained committed to helping their sons but were unable be surety again because they were unable to prevent their sons from breaching the first time. Their inability to bail their son’s out of jail contributed to feelings of uncertainty about their relationships with their sons.

For some sureties, the consequences of reporting their loved to the police was enough to dissuade them from wanting to come forward again. Emily reported her son to police for breaking a no contact order. Prior to becoming surety, Emily’s relationship with her son was “very good, I

130 would say,” though they did struggle at times dealing with his mental health issues. After reporting him, she said of the relationship that

“It’s a little strained right now, I think it’s because I had to bring him into the police. I’m very careful of what I’m saying and doing to him right now because I just want the opportunity to fix whatever is wrong between us right now, and for him to understand that I had to do whatever it took to keep everyone safe but that I still love him. But he’s been the one who always comes to me, he’ll talk to my husband but then he asks where’s mom. And dad has either worked away or worked late hours, he was a great dad don’t get me wrong, but somebody had to feed us. But he is reaching out to him more now.”

Similar to Cynthia, Emily’s son’s reaction to her phoning the police made her question her decision to report him. Luckily she had the support of her husband, who she said helped shoulder some of the burden. Unlike Wyatt who reported some positives in his relationship with Ethan since becoming surety, Emily was adamant that there were “no positives. I think it is a very difficult situation because you have no control over what they do. As much as they hear what you say, it doesn’t always link up to their actions.” Despite firmly believing that their relationship would recover, she was not inclined to be surety again, mostly because of the emotional difficulty of having to turn her son into the police and not being able to manage him the way the court wanted. She said,

“I am sure I would not do this again. If he can’t learn this time around, he already spent 45 days in custody so I’m never going to be able to control him, you don’t know what drives them, knowing all the information, you just don’t know what drives them there. I would not, in my life time, ever have to turn him into the police. It was too hard. Like I wouldn’t break the law, I just wouldn’t put myself back in a position where I was responsible.”

Despite not wanting to be surety again, Emily’s experience differs from sureties who reported they would not come forward because of a decline in their relationship with the accused. While her role as surety might have damaged the relationship from her son’s perspective (which she feared), she remained hopeful that she could maintain a strong relationship with him. In some ways, Emily recognized the possibility that being surety again could have a more negative impact on her relationship, which she was keen to avoid. At the time of our interview, Emily’s son had been in custody for nearly seven weeks and counting.

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The numerous difficulties some friends and families experienced trying to control the actions of the accused added another layer of ambivalence about the future of their relationships. Pascal and Donna were already sureties when their son breached. The entire process tested their patience with him because they believed “he doesn’t realize how much he’s impacting our lives.” “It’s especially hard,” Donna said, “when it’s your adult children. I can understand if they’re kids/teenagers but now there’s really no excuse.” Despite the amount of stress he put them under and his new charges, they still volunteered to be his surety again. Yet, they were careful to note that “this is going to be the last time. We don’t want to cut him off but at some point, we need to draw the line.” Pascal and Donna exemplify how the balancing of being a parent and a surety impacted important relationships. As parents, they wanted to help their son but as sureties, they recognized the futility in doing so. As such, several sureties questioned their willingness to provide the accused with continued support, usually indicating this was the last time. Yet unlike friends and families who noted a decline in their relationship that began after being surety, friends and family in this grouping had little expectations that bail would turn their loved ones’ lives around.

6.4.3 Constructive – “Now he can take time to fix himself”

Not everyone experienced adverse effects on their relationship with the accused when they became sureties. Fourteen sureties indicated that the process had a predominately constructive impact on their relationship with the accused by bringing them closer together and fostering greater trust. Most accused are required to reside with their surety and follow the routine and discipline of the household. As discussed previously, the forced contact between the surety and the accused led to tensions and strains in several relationships. At the same time, however, living in close proximity granted sureties and accused the opportunity to develop deeper bonds, especially when the accused appeared willing and able to follow their conditions and make some effort to change. Debbie, for example, was very apprehensive about being surety for her nephew Dhillon, whom she did not know well. She was primarily concerned about Dhillon’s reaction to her authority and having his freedom restricted. After two months of being surety, Debbie happily reported that being surety was a positive experience overall. In addition to Dhillon getting sober, being surety also benefited their relationship. Of the improvement, she said

“We now have a quite good relationship. We had some good talks. We didn’t have a strong relationship before and now we have gotten to know

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him. We were a bit hesitant to be surety because we didn’t know him that much before. In some cases but not all, he might be looking for advice and I would give him advice. We’d talk about his relationship with his dad and daughter.”

Being surety, therefore, afforded Debbie the opportunity to have more personal conversations with Dhillon than she had in the past. For Debbie, being surety was not a significant imposition in her daily life because she shared her surety duties with Dhillon’s father and her own husband. Because she was able to offload her responsibilities onto others when she needed (like going to work or on vacation), she did not experience the same set of stressors that others in the sample reported. Further, the progress Dhillon made getting sober, going back to school, and being a more present father exceeded Debbie’s expectations and encouraged her and her husband to continue their support of Dhillon even after his charges were resolved. She stated,

“We’re all pitching in to help him. I think it helps his confidence to take a look and reflect. He’s in a spot right now where he’s safe and secure. We’re not going to be throwing him out so he can now take time to fix himself so he can have security outside of our home. He’s not too far gone, he has a chance to rehabilitate.”

Like Debbie, Suki and Simon both agreed that being surety brought them closer to the accused. Suki noted that her and her brother were able to turn a “negative into a positive.” Having her brother live with her gave him time to build a stronger relationship with her children. She also added that by spending so much time together, they became “even closer friends now.” Although she was disappointed in him for doing what he did, she remained focused on helping him put the whole situation behind him. Like Debbie, Suki did not find being surety overly onerous as she had the support of her husband, who helped drive Oliver around. Simon also agreed that the terms of his nephew’s release strengthened their relationship. In addition to residing with Simon, Taylor also had to abide by a strict curfew and abstain from drugs and alcohol. At first, being surety “strained my relationship with my nephew. He felt I was riding him and I felt I was riding him but at the end of the day, what would’ve happened if I didn’t?” Although the first few months were admittedly “rough,” Simon and Taylor finally “got into the swing of things.” As a result, Simon reported that

“overall, our relationship got better, stronger. We developed more of a bond, became a father-son relationship as opposed to an uncle-nephew one. I think because I was showing him positive everyday, every time

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he did something good I praised him. I thanked him. I tried to show him he was better than what everyone told him.”

Even if his nephew breached, Simon believed that “my feelings towards my nephew wouldn’t change, even if my money was forfeited. I’d still love him. I could put my head down and say I tried.” At first, Simon’s family was not very supportive. “My mom and dad were like ‘what the hell are you doing?’…but they all became more supportive and understanding once they saw the changes Taylor was making.” Unfortunately, Taylor committed suicide shortly after his charges were resolved.

Not only did being surety increase the amount of contact friends and family had with the accused, it also helped facilitate trust and reciprocity in the relationship. Rod found his relationship with Dwayne, the accused, improved while he was his surety. According to Rod, Dwayne was a good person and a hard worker. As Dwayne’s boss, Rod described their relationship as being strictly professional, which meant they did not know each other well outside of work hours. When I followed up with Rod almost three months later, he described his relationship with Dwayne on a more personal level. “He’s like a son right now,” Rod noted, “As a business owner, you’re not really supposed to have relationships with people in the business. But now, we’re a bit close. We got closer because he’s in my house and he’s been so good and honest and we can trust him in the house and everything.” For Rod, being a surety helped him to develop trust in his relationship with Dwayne. For people like Rod who might not be close with the accused, becoming a surety is an exercise in blind faith – they have to hope the accused will comply. As such, Clayton, like Rod, also found being surety “made the relationship stronger. It builds trust. I can trust him and he can trust me because he hasn’t broken any conditions and because I became his surety.” This coming from a man who originally declined being surety because he believed Donovan would not “listen to me or follow rules” highlights some of the constructive effects being surety can have on social ties. Indeed, Randy also found his relationship with the accused “got potentially even better” since he became surety. When asked to explain, he said

“I think he really appreciates it. He didn’t have anyone else turn to so for me to help him out in that way, I think it strengthened our friendship you could say. Before that I hadn’t really kept in contact with him. I think just closer contact, more frequent contact. The fact of the situation that he needed help and I was there to help him is something that he really appreciated.”

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All three men reported that because of their positive experiences with the accused they were willing to continue their support. From their perspective, the accuseds’ ability to be responsible warranted further trust and assistance. Rod stated that he now put more trust in Dwayne in the workplace, giving him more responsibility and hours, which would soon result in a wage increase.

Despite the constructive elements of being a surety, the limitations it put on the lives of the people who came forward sometimes made them less likely to offer similar help in the future. Abigail and Daniel noticed a boost in their relationship with their son Lenny, who had been living with them prior to being charged. When asked about whether being a surety had any noticeable impact on their relationship, Daniel stated

“Its been beneficial for us as a family because we can spend a lot of time with him. We can talk about things, he opens up to us and we can talk about the fun things in our past…I think he’s at a turning point in his life and to be there with him in that is a real privilege. Even though we aren’t pushing him ourselves (to make this a turning point), he has to choose that himself. I think that’s a real positive of being a surety. His whole life is turned around and all that he had going for him has gone up in a puff of smoke. If he would be in a prison, then we wouldn’t be as involved. But this just goes much deeper and we get a chance to talk a lot.”

Yet, despite feeling closer to their son than in they had in the past, Abigail was hesitant about coming forward as surety again. The rules that her son had to follow made it difficult for her and Daniel to travel and spend time with their friends and family. As an older couple (78 and 85), Abigail was anxious to go back to Greece (where they spent the majority of their adult years) but was prevented from doing so because of her legal obligations to supervise her son (more on this in the conclusion). Camilla also reported that while being surety for her friend “strengthened the relationship” because they were able to have “more serious conversations,” she acknowledged how quickly this would change if she were estreated. Camilla’s responses to my hypothetical questions about her friend breaching shows how being a surety can have a damaging or precarious effect on the relationship if the surety has to report the accused or the accused is caught breaching. Although Camilla thought she would remain friends with Georgia if she had to forfeit the money she posted for bail, “it would hugely change our relationship.” She said,

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“I would feel betrayed, I’d be angry, upset, disappointed. I would feel very betrayed. After a day or two, I would talk to her. If I spoke with her that day, I’d probably yell at her and make her feel worse than she already feels. I would feel like she cares nothing for me. I don’t know if we could come back from this, the trust would be gone. We would still be friends but maybe not sisters.”

Abigail’s, Daniel’s, and Camilla’s experiences demonstrate that while relationships can improve as a result of being surety, they operate under a certain degree of uncertainty because of the conditions the accused is forced to live under and the ever present risks involved if the accused breaches.

6.5 Discussion

Friends and family are expected to do a lot of heavy lifting when it comes to the care and control of criminalized people, yet they are commonly invisible in the official discourse about the effects of punishment. For years, it was believed that the presence of friends and family in the lives of offenders was enough to modify criminal behaviour. Recent research on the repercussive effects of incarceration show that while friends and family do play an important role in the desistance process, their relationship with and subsequent support of the offender is often shaped by the imprisonment process itself. As friends and family become more and more “characteristic of the penal community” (Comfort 2008 citing Clemmer 1940: 186), both the offender’s family and community “have been prisonized to a degree that the dividing line between ‘inside’ and ‘out’ is significantly blurred.” Surety bail releases provide a unique opportunity to understand how this blurring of penal boundaries effects important relationships and access to social support among individuals accused of crimes. While sureties assume the role of civilian jailer to varying degrees, they are nevertheless held accountable for controlling and preventing the criminal actions of their loved ones. While the subsequent pressure this imposes on both the surety and the accused can have a similar volatile effect on the relationship as imprisonment, it may also have more immediate impacts that shape the strength of said bonds.

Friends and family provide much needed support and stability for accused individuals who must deal with the insecurity of being charged with a criminal offense. Just being criminally charged can impose significant restraints on a person’s life, which can negatively affect access to housing, mental and physical health, and employment, among other things (CCLA 2014). As a

136 result, having the support of friends and family remains vital for criminalized people as they move through different stages of the criminal justice system (Comfort 2008; 2016). However, for some people, having friends and family take on the role of a surety can damage these ties before they are even convicted. Indeed, being a surety modified relationship dynamics as friends and family not only assumed legal responsibility for the actions of the accused, they also enforce the conditions of the court and (commonly) provided the accused with housing and financial assistance. The terms attached to these types of releases meant friends and family often became much more entwined in the day-to-day activities of the accused than they were prior to being surety. In addition to living together, many sureties provided the accused with intangible resources in the hopes of sparking a turning point. In exchange for this support, most sureties expected the accused to at the very least make an effort to abide by their conditions.

Not all accused felt compelled to comply with the court’s orders and heed their surety’s wishes, which often took a heavy toll on their relationship with their surety. Like Gideon (2007) who found that unmet expectations between parolees and their family adversely impacted their relationships, the results of the present chapter show that relationships similarly suffered from disparate expectations between the surety and the accused. Accused who disregarded court orders were viewed as ungrateful or underserving of their surety’s help, creating fissures in their relationships. Friends and family who had very minimal social supports of their own felt the burdens and stresses of being surety more than individuals who could outsource some of their responsibilities to others. The deterioration in relationships that began after becoming surety therefore demonstrates the more immediately damaging effect of downloading responsibility for the accused onto friends and family. While imprisonment can disrupt previously strong relationships (Christian and Kennedy 2011) and lead to a decline in contact over time, the current results demonstrate that transforming loved ones into civilian jailers can lead to a rapid breakdown in the strength and quality of the relationship, which erodes essential and previously strong support networks.

For others, becoming surety created further instability in what were already precarious and complicated relationships, especially in cases where the accused disregarded court orders. Unlike those who felt that being surety ruined their relationship with the accused, these individuals were generally less optimistic about the accused’s ability to comply to begin with. Yet, the act of being surety made their relationship with the accused more volatile because it put them in a

137 position to report or breach the accused for non-compliant or criminal behaviour. Sureties forced to report their loved ones to the police noted an uncertain future in their relationship with the accused. Not only were there concerns about repairing ‘bad’ feelings in the relationship after the breach, there were also questions about whether they would/could come forward again. Those who were prepared to post bail but were unsuccessful in preventing a breach in the past were often not allowed to be surety again, making it difficult for the accused to be released from custody. This indeterminant time in jail put added pressure on the accused’s friends and family to try to make alternative arrangements for release. Maintaining support for an accused in custody presents several challenges due to limits on in-person and over the phone contact. As Pelvin (2017) indicates, accused remanded to custody are only allowed to make collect calls to individuals with landlines. Since many families I spoke to who had a loved one in custody only had cellular phones, this rule was especially prohibitive. Thus, making friends and family accountable for the actions of someone who is likely not to comply further complicates surety- accused relationships, causing the surety to doubt their desire and ability to continue their support for the accused moving forward. As a result, some sureties predicted an end point in their willingness to help the accused, saying things like “I can’t keep doing this,” or “this is our last time.” The hesitancy of these sureties to come forward again highlights the tensions that arise when friends and family assume the role of civilian jailer. Even some sureties who saw an improvement in their relationship since becoming surety were uncertain about coming forward again due to the stresses involved with being responsible for someone else.

The damage and instability that unfolded in the relationship between the surety and the accused reveals the harmful effects of governing through crime (Simon 2007). Under the court’s rules, the dynamics between the surety and the accused become predicated on the accused’s willingness to comply with their conditions and accept their surety’s support. Consequently, the accused’s behaviour takes on new meaning as surety’s observe the directives of the court. While one of the benefits of being released on bail with a surety is that it allows for the continuation of relationships, it also imposes significant restraints on the actions of the accused and their loved ones. Many sureties were very much aware of their legal obligations to report the accused for bail breaches even though some were willing to overlook or relax certain conditions for good behaviour. For several sureties, this task put significant pressure on their relationship because they were also at risk of getting into trouble if the accused failed to comply. As friends and

138 family assumed the role of civilian jailer, they became more aware of the accused’s actions, viewing non-compliant behaviour as a sign of disrespect. When an accused breached or failed to heed their surety's advice, sureties commonly took it as a sign of utter disregard both for themselves and the relationship more broadly. Rather than attribute the accused’s actions to broader structural issues as they did prior to becoming surety, some friends and family adopted a “responsibilization” discourse more in keeping with official penal aims. After becoming surety, many friends and family viewed accused who were unwilling to comply or make changes as irresponsible and thus, undeserving of support.

Under these circumstances, accused persons’ risk losing important members of their social networks when their friends and family supervise them on bail. Indeed, several friends and family reported that despite having a positive relationship with the accused prior to being surety, they no longer wished to continue their relationship. While this study is limited in that it does not follow-up with accused individuals about their experiences on surety bail, we generally know that ‘failure’ is relatively common given high provincial breach and remand rates. Without the support of friends and family, accused risk spending more time in custody which can have a number of negative implications. According to Kellough and Wortley (2002) Crowns often leverage the conditions of pre-trial custody to facilitate a plea, which may lead to false confessions. Detained defendants also face a greater likelihood of longer prison sentences (Sacks and Ackerman 2012). Despite being legally innocent, most of the accused persons referred to in this study had previous encounters with the law so cutting off access to social support can also have more long term consequences. Weakened bonds to pro-social friends and family can make it more difficult to desist from crime, potentially leading to the accumulation of more charges and convictions overtime (Bahr et al 201; Laub and Sampson 2003; Mowen and Visher, 2015).

The associated costs of having a surety fits with Kaiser’s (2016: 127) definition of a hidden sentence, which he describes as being “any punishment imposed by law as a direct result of criminal status, but not as part of a formally recognized, judge-issued sentence.” Hidden sentences not only have the potential to minimize the legitimacy of punishment by preventing the achievement of justice and the reduction of crime, they also “destroy opportunities for vindication, rehabilitation, and security” for both offenders and victims (Kaiser 2016: 128). For individuals accused of a crime, the collateral effect of having a surety on important relationship ties shows the often unacknowledged consequences of being released on bail. This is particularly

139 troublesome considering legally innocent people are supposed to be prevented from state- imposed punishment under the Charter of Rights and Freedoms. The legal discourse that avoids referring to bail as punishment obscures the fact it is keenly felt by some accused and their loved ones as having punitive consequences that extend beyond the criminal charge itself. The breakdown in important support systems is consistent with Malcolm Feeley’s (1992) contention in The Process is the Punishment that pre-trial features, like bail, can outweigh the penalties imposed after adjudication and sentencing. Though releasing accused to sureties can minimize issues of overcrowding, worsening prison conditions, and higher housing costs, it presents a unique set of challenges that subjects accused to more control prior to conviction than if released on their own recognizance.

However, not all sureties experienced a decline in their relationship with the accused with one- third seeing an improvement in their relationship during their tenure as surety. According to Comfort (2008) and Christian and Kennedy (2011), imprisonment can have a transformative effect on relationships as friends and family dedicate more time and effort to their relationship with the offender in the hopes they will change. Sureties releases had a similar outcome on relationships though friends and family were more inclined to recognize this as having a constructive or strengthening effect on their bond to the accused. Except in two cases, all accused were required to reside with their sureties, which several cited as the reason for the improvement in their relationship with the accused. Living together provided sureties with the opportunity to become acquainted with the accused on a more intimate basis. Several friends and family reported that coming forward as surety was perceived highly by the accused, who in turn was thankful, compliant, and more trusting of them. As Megan said about her experience as her brother’s surety “we were together all the time so we became each other’s confidants; he opened up to me about things that he would never have in the past.” The transformative effect being a surety had on relationships lends additional support that criminal justice interventions can be multifunctional (Sampson 2011; Turnbull and Hannah-Moffat 2009).

Yet, like with the individuals who reported that being surety had a volatile or damaging effect on their relationships, the actions of the accused took on greater significance after becoming surety. Most of the sureties who experienced an increase in the strength and quality of their bonds with the accused emphasized the willingness of the accused to either comply with the rules or make lifestyle modifications. Sureties interpreted compliance as a sign of respect, mostly because they

140 believed the accused was intentionally abstaining from behaviour that could put them in jeopardy. In this way, accuseds who took responsibility for their actions and managed their behaviour accordingly were subsequently more deserving of their sureties continued support. For some, the benefits of being surety were evidence that these types of releases are an important and necessary step to getting the accused life back on track. Thus, for accused who are already willing to change, having a surety may help modify their routine by providing necessary support and ensuring accountability. Under the care of their sureties, several accused individuals did make noticeable improvements in their lives by re-establishing contact with their children, maintaining sobriety, and going to counselling for mental health.

While the reported increases in both the strength of relationship and the interest of friends and family in helping the accused highlights the constructive or even beneficial aspects of surety releases, these seemingly positive effects must be considered in light of the arbitrary rules the courts impose on these relationships. Sureties are given substantial power and control over the accused who must oblige or risk being sent back to custody. These shifts in relationship dynamics, while perceived at the time as helpful, could create a false-sense of reality that makes sustaining the relationship difficult once the accused’s charges are settled. Indeed, Kaufman, Kaiser, and Rumpf (2018: 490) argue in their work on the extra-legal control of offenders that the penal state imposes “overwhelming constraints…even in moments when people experience this intervention as enabling.” Moreover, the length of the release could also affect a surety’s enthusiasm about continuing to support the accused, as the longer the accused must follow court orders, the more opportunities there are to breach and subsequently damage their relationships. Even sureties who reported an improvement in their relationship with the accused noted how things may change if they had to report the accused and/or forfeit their bail amount. In this way, surety releases have the potential to bolster important social bonds while at the same time threatening to break them.

6.6 Conclusion

Research shows that incarceration is an important turning point in the life course, profoundly altering family relationships and requiring adjustments in the aftermath. Beyond offering criminalized people support, friends and family are being held more responsible for managing and preventing criminal behaviour than they have in the past. Nowhere in Canadian criminal law

141 is this more apparent than with surety releases. Like with imprisonment, surety releases affect relationships in different ways. As the results show, surety releases have damaging, volatile, and constructive effects on relationships. This is predominately because the accused’s actions and behaviour takes on greater significance for friends and family who are now in control of maintaining compliance. While surety releases have the potential to improve the accused’s relationship with their friends and family and increase their surety’s willingness to continue their support, the rules of the court are like an omnipresent force that continually threatens to disrupt the ties that bind.

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Chapter 7 “Punishment Drift” and the Attribution of Blame: the Hidden Costs of Being a Surety Introduction

The preceding chapters probe the effects of the carceral devolution on the criminalized and their loved ones. It does so by exploring the extent to which criminal courts rely on friends and family to manage accused individuals released on bail. Despite the diffusion of penal control, the power to define and manage criminalized people remains primarily within the scope of the state. Conducting “go alongs,” court observations, and sequential interviews with thirty-six sureties two to eight months into their role allowed me to ask questions about how they maintained their loved one’s compliance to court conditions. The benefit to this methodological approach is that it adds more granularity to prior research on the devolution of state power by demonstrating the ways penal control is not just assumed but also resisted. The purpose of this chapter is to consider the broader implications of this study’s key findings and indicate areas for future research.

7.1 Expanding the Scope of the Crime Control Net

The findings of this study complicate theoretical advancements about the role and utility of non- state penal agents. Though the process of becoming surety seemingly enmeshes friends and family into the “carceral community,” how they assumed their role varied considerably. On the one hand, sureties commonly used enforcement strategies recommended by the courts such as restricting an accused’s free-time and leveraging the consequences of non-compliance. The frequent use of these control-oriented strategies among participants is in keeping with prior research that finds that non-state agents rarely depart from penal demands. Yet on the other hand, friends and family also regularly diverged from court directives by providing accused persons with additional support and resources aimed more at behaviour modification than strict compliance. For example, sureties sometimes overlooked bail breaches if the accused made a concerted effort to remain sober. Here we can still see a commitment to their role but one where they selectively engage with rules that align with their own goals. These goals commonly included helping the accused get sober, find employment, avoid “bad influences,” and become a better parent. In doing so, sureties introduced reform as a key feature of the bail experience,

143 making them more than just another legal apparatus. Through their own demands, friends and family played an important role in informing how criminalized people are supervised in the community. As a result, accused individuals are forced to navigate an intricate web of control that is cast not only by the court but their loved ones as well.

Being subjected to increased control raises concerns about pre-conviction punishment. One such concern is the possible lack of privacy accused individuals are afforded within their own homes. Although homes are said to provide the highest degree of privacy from legal interference (R. v. Silveira 1995), surety releases have the potential to transform the home into a prison-like environment. From a sociological perspective, future research could probe the extent of this transformation by comparing the experiences of accused released on bail with a surety with accused released on their own recognizance. Comparing the experiences on different bail releases would allow scholars to understand whether having a surety puts accused at greater risk of breaching and/or being caught. Socio-legal scholars may be further interested in assessing whether reductions to privacy go beyond reasonable bail.

7.2 The Multifunctionality of Criminal Justice Interventions

In spite of increased control, a noteworthy finding from this study is the constructive effects being a surety had on personal relationships. This result supports Sampson’s (2011) assertion that the consequences of criminal justice interventions are not always strictly repressive. Indeed, several friends and family described how being a surety provided them with the incentive and time to invest more in their relationship with the accused. Sureties who reported an improvement in their relationships were much more willing to continue their support for the accused by either being a surety again and/or offering additional resources like rent-free housing. Having the support of a surety may act as a turning point for accused individuals who are ready to make a change, even if only in the short-term. Certainly, several sureties reported that under their supervision, their loved one had enrolled back in classes, found employment, sought counselling, and focused more on parenting. These results, therefore, challenge us to further consider the productive or at the very least multifunctional role criminal justice interventions have in the lives of certain individuals. Next steps would be to systematically document the ways accused individuals benefit from having a surety (in both the short and long term) by interviewing

144 accused directly. Results of this research would assist legal professionals in creating release plans that are most conducive to these outcomes.

If having a positive surety experience can act as a turning point in an accused’s life then identifying the factors that facilitate this process is also important. This study begins to bridge this gap by identifying the ways bail can shape surety-accused relationships. In particular, bail can have a constructive, volatile, and damanging effect on relationships characterized by expectations about the accused’s ability and willingness to make certain lifestyle adjustments as well as the ever present possibility of having to pay for the accused’s bail. The implications of being surety means the accused’s actions take on new meaning. Sureties commonly depicted non-compliant or deviant behaviour as a personal slight against them and a personal failure on behalf of the accused. Instead of considering the broader structural factors that might have contributed to their loved ones difficulties as they did prior to becoming surety, many sureties now viewed breaches as evidence that their loved one was undeserving of future help. An additional contributing factor to this decline in support was the burden friends and family felt being surety. Even those that saw some benefits to being surety reported a number of associated financial, social, and emotional costs, which took a toll on their employment, sociability, mental health, and parenting responsibilities. Knowing the costs of being surety on friends and family can not only help minimize the loss of support some accused experience while released on bail, it can also identify problematic trends within the criminal justice system that warrant greater attention.

7.3 Experiencing “Punishment Drift”

Allowing accused individuals to live in the community with a surety minimizes the substantial personal and financial costs of remaining in custody, yet it places significant demands on the friends and family who come forward. Holding friends and families accountable for the actions of the accused puts them at risk of becoming victims of an ever-widening social control net simply by virtue of their relationships. Although court rules are only intended to “govern the behaviour of the accused,” Comfort (2008: 190) notes how “spending time with a parolee effectively subjects someone to that person’s terms of supervision.” By documenting the transformation of women partners of male prisoners into secondary parolees, Comfort turns our attention to how the pains of imprisonment are felt by non-criminal others. Being financially

145 accountable for the actions of the accused similarly subjects sureties to the same set of conditions. As a result, many sureties describe fulfilling paradoxical roles as both guard and prisoner. Kersen exemplifies the tension he experienced navigating these roles when trying to ensure his son complied with court conditions. He said “the court has decided that they put a restriction on him but they tell you to follow the same restriction. But he’s the one to blame for everything. They tell him to do this but if he breaks, they come back to you.” In the context of bail, conditions work to restrict and govern the lives of both the accused and their surety.

The resulting “punishment drift,” though not specific to pre-conviction processing, tends to be overshadowed by larger discussions on the collateral effects of imprisonment. According to Lippke’s (2017), “punishment drift” captures the ways in which the effects of legal punishment tend to drift to the family members, friends, and larger communities of criminally convicted persons. The collateral consequences of imprisonment have been well documented and though these are often dismissed as being unintended or inconsequential, Lipptke (2017: 646) argues that punishment drift “ought to be seen as coming a bit too close to punishment of the innocent to be casually tolerated.” Friends and family of incarcerated people commonly suffer the harms associated with decreased psychological and mental wellbeing, financial costs and loss of economic opportunities, and intrusions and control of private life. The results of this study indicate that these harms are not unique to the friends and relatives of prisoners. Sureties described suffering similar pains, revealing that punishment drift likely occurs at all stages of criminal justice processing not just upon conviction. These pains are summarized below.

7.3.1 Financial Burden

As part of their release from custody, accused are commonly required to reside with their sureties. On account of this, many sureties reported assuming greater financial responsibilities. Samantha, Shirley, and Lydia, for example, all complained about having another mouth to feed. Daneil and Abigail described the immense costs they endured paying for their son’s lawyer. These added costs put strain on monthly budgets, causing some sureties to worry about how they would keep up on their bills. In addition to the added costs of having someone live with them, some sureties also worried about the possibility of having to pay for their loved one’s bail. As Lydia describes, “I’m just tired of having this on the back of my mind. I just have this in the back

146 of my mind that I could lose this money or my property or whatever.” The threat of being estreated constantly weighed on sureties, adding unavoidable stress in their daily lives.

7.3.2 Emotional Burden

Knowing someone in trouble with the law meant that some sureties described experiencing a sense of shame and embarrassment. Several sureties, like Josee, for example, felt that they had to make up excuses to help explain their absences from work when having to attend court. She strongly believed that because this was a “private family matter” her workplace “would not understand.” Moreover, Rod did not tell his employer that he had to attend court because he did not want them to think he was “associating with criminals.” Elizabeth likewise avoided telling her friends and family about being surety because it would also mean disclosing her son’s mental health problems. She explained

“his mental illness is not something any of our friends would know. My generation is that this is something that you hide…it’s not just me that I’m afraid they’ll judge, it’s him too. I like to have people over and I want him to feel welcome so I don’t want people to whispering.”

The stigma some sureties feared they would experience is illustrative of Goffman’s (1963) courtesy stigma, which refers to the ways in which people within the social orbit of a discredited person will attract a similar stigma. Once someone is viewed as a member of a stigmatized group, they are likely to be stereotyped as being flawed, weak willed, and dishonest irrespective of their actions and by virtue of their associations (Goffman 1963). For many sureties, the first time experiencing this stigma is in the courthouse. Lydia, for example, explained that “in court, there was a Crown who treated me like crap, like a criminal. I just got loud, I was just freaking out because this lady [the Crown] was being an ignorant bitch. I was going, ‘I’m going to my MP, this is bullshit. I’m not a criminal, I’ve been asked to be here. I’m here at your request, you get paid to be here, I don’t.’ The result of this stigma took a considerable toll on sureties. Samantha, for example, became reclusive and rarely left the house in the six months she was surety.

7.3.3 Social Burden

For the reasons cited above, many friends and family also pointed to the social costs of being surety. Daniel and Abigail, for instance, found the task challenging because they had “far less

147 free time” than before becoming surety. Even though they identified the benefits of being surety as strengthening their relationship with their son and providing a better alternative to jail, they likened being a surety to “an extended prison.” They stated that since becoming surety,

“It’s harder to have guests come and stay overnight. [Daniel] It’s been harder for me to do some of my other projects because if I’m not around, I’m fine leaving Angela at home, it’s not like I’m afraid of him, but it’s just slowed down some of my projects because it [supervising] does take a large chunk of the day. And you don’t feel like you can invite friends over easily because they might ask questions [about why he’s living with us].”

The time spent supervising coupled with the stigma of having a child in trouble with the law prevented Abigail and Daniel from spending time with their friends and engaging in outside projects. Like Abigail and Daniel, Shirley felt very restricted by their role as surety. She said “I can’t go anywhere or do anything otherwise I have to bring him with me or call the house phone to make sure he’s here because I don’t trust him. It’s overwhelming. It has impacted my plans with my friends big time and my family too -they have no idea they just think I’m helping him through a divorce.” For Elizabeth, the fear that her son might breach if she left him alone meant that her and her husband skipped celebrating their 40th wedding anniversary. “The lack of freedom,” as she put it, forced her to cancel two pre-arranged vacations.

The limits placed on sureties’ social lives sometimes had an extreme effect on their intimate partnerships. Johnny, for example, partly blamed being surety for his breakup. He admitted that “I was in a relationship and now I’m not. Because of her [Helen]. She [ex-girlfriend] didn’t like her at all. And I was like she was a friend of mine and I said I would help her out. There were other issues between us but that was really the tipping point.” Both Samantha and Pamela also stated that their relationships took a significant hit once they became surety. Pamela indicated that while she was still with her partner, she feared the relationships was “already ruined.” In both Samantha’s and Pamela’s cases, their partners were unsupportive of their decisions to be surety and objected to having the accused live with them. Even when sureties had outside support, their relationships sometimes still suffered. Simon said being surety “strained my relationship with my wife. She thought I was too preoccupied with him [his nephew, the accused] and not enough on our relationship. We used to have date night but we couldn’t with him because I always worried what he was up too.” Wanting to keep a close watch on the accused also led Wyatt to “neglect my role as husband and father to my daughter. I neglected any

148 of ‘me’ time. Friends? What friends.” As outlined in Chapter 6, having a support system can help offset some of the burdens of becoming surety and potentially minimize consequent strain on accused-surety relationships.

7.4 The Responsibility Drift

One of the intrinsic problems with punishment drift is that it contradicts notions of individual responsibility and punishment. Lippke (2017: 653) says “in the United States, we treat offenders as strongly responsible for their criminal acts but make, at best modest efforts to confine punishment effects to them. By letting punishment drift, we punish their families as if they too are responsible for the crimes of their members.” The continued use of sureties indicates that friends and families are regularly held responsible for the actions and behaviours, past and future, of their loved ones. In this way, we see an actual drifting of not just punishment but also responsibility. Prior research on bail in Canada suggests that the overuse of sureties provides courts with the opportunity to shift blame should the accused reoffend or abscond once released. However, the results from this study also indicate that this shifting of blame is not just future oriented. The courts regularly fault sureties for not taking appropriate measures to prevent the alleged crime to begin with. Indeed, criminological theories have long explained criminal behaviour by identifying social and environmental correlates of crime. Social bonds, differential association, social control, and life course theory, for example, all attribute criminal behaviour to negative social bonds, attachment to criminal others, lack of parental oversight, and the absence of meaningful relationships. Thus, when someone commits a crime or is simply charged with an offense, there is a tendency, and rightfully so, to try to find defects in other areas of that person’s life that may account for their behaviour. For those closest to that person, this can sometimes mean being held accountable. In bail court, for example, this is evident by the tendency of Crowns to regularly fault potential sureties for being unable to control their loved one’s suspected criminality and using this as a reason to recommend denying bail.

This establishment of responsibility makes it easier to see how court ordered requirements might also work to condition sureties. The practice of ‘conditioning’ though commonly discussed in reference to criminalized people, can also drift or extend into the lives of their loved ones. While this could be conceptualized as an unintended consequence of criminal justice outcomes, Kaufman, Kaiser, and Rumpf (2018) argue that the use of conditions is integral to the penal

149 state’s effort to control and responsibilize. In the context of bail, conditions can be seen as governing the behaviours of both the accused and their loved ones. Releasing accused with a surety responsibilizes friends and family by forcing them to adopt and practice crime control principles. Though not all sureties underwent this conditioning to the same degree (some accepted their role, others resisted it, and some did both), the implication is that an accused’s criminality can be deterred through the careful control of their loved ones. Their failure to do so likely renders the associated costs of being surety (as outlined above) as seemingly unavoidable and ultimately justified in the eyes of the criminal justice system. Additional research could assess whether other types of criminal justice interventions, like probation and parole, similarly police and manage the behaviour of friends and family by holding them criminally responsible for the actions of their loved ones. This would allow for more indepth theorizing about how the criminal justice system assigns blame.

7.5 Limiting Punishment and Responsibility Drift

Bülow (2014: 776) argues that from an ethical perspective, “we have a strong duty not to harm the children, family, and friends of the prison inmate, especially since they are not guilty of any criminal offense.” When it comes to legal punishment, however, the state is faced with a moral conflict. In fulfilling its obligation to protect its citizens from harm, it can also violate the safety and security of prisoners’ families and friends. The costs of being a surety indicate that bail courts must be committed to reducing the repercussive effects of bail on an accused’s friends and family. Decisions to release an accused, whose innocence is legally intact, require careful consideration. Without it, release decisions can unduly subject the accused and their loved one to punishment without process. The difficulties sureties experience in their role also has the potential to negatively affect their relationship with the accused and their desire to continue their support. When certain harms are unavoidable, the state has a “residual obligation” to ensure that friends and family of an incarcerated person are minimally harmed. Hansson and Peterson (2001) identify five residual obligations that can help minimize punishment drift at the bail stage: obligation to communicate, obligation to improve conditions, obligation to search for knowledge, attitudinal obligations, and obligation to compensate. In discussing these obligations in turn, I provide some parameters for how the criminal justice system can move towards making a bail system that is more responsive to the needs of sureties and accuseds.

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7.5.1 Obligation to Communicate

Although court members consult with sureties on the types of conditions to impose, they rarely consider the repercussive effects of those conditions. The lack of attention on sureties can likely be attributed to three main factors: 1) sureties have no legal representation in court, 2) bail hearings can be quite expeditious, and 3) there are limited resources available to sureties to assist them in their role. Defense lawyers represent the best interests of their clients, which sometimes conflict with those of the surety. When tasked with getting their client out of custody, some lawyers do not consider how the conditions they agree to will impact the surety’s life. As Lydia remarked

“I don’t think that’s right that the lawyers are working in the best interest of the accused, they don’t give a shit about us that we’re going to lose all this money or go to jail. Lawyers won’t even talk to us. We have a stake in this person’s charges as well and they treat us after we sign those papers like garbage. They’ll say whatever they have too to get you to sign those papers.”

In some ways, these interactions are likely a function of the little time lawyers have to prepare for a hearing. This coupled with the prompt nature of many bail hearings means that it is easy for sureties to fall through the cracks. To minimize the costs of being surety, the courts should be open to communicating with the loved ones of accused more frequently. The defense, Crown, and judge must be committed to listening to sureties’ concerns and welcome their input throughout the accused’s release (and not just during the bail hearing). Rather than focus solely on the types of conditions, the courts should begin conversations with sureties about the feasibility of enforcement. Making a concerted effort to consider how particular conditions could negatively impact a surety’s life can help ease tensions in relationships that arise upon release, which could reduce the number of administrative breaches.

7.5.2 Obligation to Improve Conditions

Throughout my interviews, sureties lamented receiving no support or assistance from members of the court. It is possible that some of the pains of being surety could be offset by the implementation of an official support system for an accused’s friends and family. In particular, sureties described wanting more training for their role and access to personal support and counselling. At present, the only available training and support offered to sureties is a one page

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“What Sureties Need to Know” document listed on the Ministry of the Attorney General website. The first piece of advice offered by MAG is “think about getting independent legal advice to make sure you understand what this commitment means.” Considering the harms the courts impose on sureties, this is a service that should be provided free of charge or at a reduced rate, especially since a considerable number of sureties are unemployed and likely not able to afford this cost. Based on my interviews with sureties, there is a strong likelihood that many (especially those who are first time sureties) do not fully understand the full scope of their role when signing the affidavit. To compensate for some of these issues, MAG should at the very least provide some in court assistance and support to those wanting to be surety.

7.5.3 Obligation to Search for Knowledge

When there is a possibility to harm non-criminally involved friends and family, the court has an obligation to gain knowledge about the effects of these harms (Burlow 2014; Hansson and Peterson 2001). This openness to conducting and reviewing research extends to individuals who come forward as surety. More recently, upper courts (Supreme and Ontario Superior Court) have expressed a commitment to building on existing bail research. In both R. v. Antic (2017) and R. v. Tunney (2018), the Justices recognized and cited academic literature that indicated that bail was moving away from its legal mandate, especially in regards to surety uses. The resulting outcome in both court decisions was that surety releases must be used sparingly and that lower courts must return to the principles of bail as outlined in the Criminal Code. Though these decisions did not address or recognize the resulting harms of requiring a surety, they may nonetheless mitigate these adverse effects in two ways. First, calling for a reduction in sureties will logically offset the strains felt by the friends and family who are no longer held accountable for their loved one’s actions. Indeed, it has been suggested by scholars that many requests for sureties are unnecessary, which makes the harms almost entirely avoidable. Second, in emphasizing the need to uphold the ladder principle, the decisions in R. v. Antic (2017) and R. v. Tunney (2018), warrant the use of fewer conditions. In particular, they order that conditions must be rationally and justifiably connected to the allegations. For sureties, having to enforce fewer conditions may minimize some of the challenges they described above and make them feel less like they are prisoners in their own homes.

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7.5.4 Attitudinal Obligations

At present, there seems to be an official indifference to the negative impacts being a surety has on friends and family. This may result from broader assumptions that these effects are unintended or unavoidable. However, as argued above, there seems to be a pervasive attitude amongst court actors that sureties are at least partly to blame for their loved one’s legal troubles. As a result, bail releases can be rationalized as attempts to govern the behaviours of not only the accused but their surety as well. This is further supported by a current court culture that is exceedingly risk adverse. By requesting accused to have a surety, the court absolves themselves of the blame should the accused not attend court or reoffend. The in-court discourse needs to shift away from scapegoating sureties for the accused’s actions. Doing so could help to offset the stigma some individuals felt during court proceedings and encourage court personnel to acknowledge the interests of sureties before, during, and after the hearing. It could also provide a further incentive for court actors to do a more careful reading of the law when deciding to request and impose sureties and conditions.

7.5.5 Obligations to Compensate

The financial costs involved in being a surety require further attention. In all cases but two, the justice of the peace required the accused to reside with their surety. While all sureties agreed to this condition, not all anticipated the financial hardships they would experience as a result of this condition. Having another adult in the home presented added costs related to groceries, utilities, and travel costs. This was made more difficult the longer the accused remained on bail. Many of the accused released on bail were unemployed, which made it difficult for them to contribute to their surety’s household. This was further compounded by the fact that just under half of all sureties were also unemployed. Though providing financial compensation for sureties is unrealistic and presents unique challenges (i.e. incentives people to come forward as surety), the court should have an obligation to consider and offset the monetary costs involved by expediting minor cases and reducing residential conditions. Allowing accused individuals access to improved housing and skills training could also be helpful in minimizing the financial burden of being surety. An alternative to financial compensation could also be an open acknowledgement from the Ministry of the Attorney General about the value of sureties to the functioning of the early stages of the criminal justice system.

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7.6 Upholding Confidence in the Administration of Justice

Aside from reducing the harms to legally innocent people, the criminal justice system has a written commitment to uphold the public’s confidence in the administration of justice. At the bail stage, this commitment allows judges or justices of the peace to confidently deny bail in cases where the accused is charged with a serious crime but is not at risk of absconding or reoffending. Though this clause is rarely cited in judicial decisions to deny bail, it does emphasize the importance of acknowledging community interests at this stage. Surety releases, as they currently operate, may move bail further away from this principle. As members of the public, sureties’ experiences with bail complicate their feelings of the criminal justice system more broadly. On the one hand, some sureties stated that the process reinforced their admiration for and appreciation of the criminal justice system. Assuming the only alternative option was custody, some sureties appreciated that their loved one was able to remain in the community under their supervision. This is in keeping with broader assumptions that community sanctions are a ‘better’ alternative to prison. The “anything but jail” fallacy “rests on the mistaken factual supposition that all those who receive the proposed community sanction would otherwise have been imprisoned. That is almost never the case (Von Hirsch 1990: 164).” Indeed, according to the mandate of bail, most accused should actually be released on less restrictive terms that do not require a surety. But because these sanctions are often advertised as more humane alternatives to the harsh sanction of imprisonment, the deprivations they impose remain largely ignored. However, a prominent theme in bail research is that surety releases in their current form represent an unfulfilled promise. Despite being intended as an alternative to remand, surety releases may widen the net of penal control rather than contribute to a meaningful reduction in overall custodial rates.

As a result, several sureties also expressed a growing frustration with the criminal justice system. Based on her experience in court, Lydia reflects “they don’t think about what they do before they do it [the courts] my opinion is you are presumed guilty until you PROVE you’re innocent. When you get charged, you are presumed guilty until innocent until you prove you’re innocent, that’s how it operates. I think that’s very problematic.” This presumption of guilt was a common theme expressed by sureties who recognized the inherent difficulties of trying to make bail. As Shirley said, “I used to respect the police and the law, I don’t respect them now. Is that awful? I’ve seen now what they do.” The burden of being surety coupled with the treatment they and

154 their loved one endured either produced and reinforced a legal cynicism among many in the sample. Chapter 5 indicates that sureties who were already distrustful of the criminal justice were less likely to report the accused to the police, highlighting some of the consequences of legal cynicism. Other research notes that distrust in the police and legal system more broadly can lead to reduced reporting and help-seeking and create counter-cultures that emphasize violence. The reduction in confidence among sureties provides additional motivation to minimize responsibility and punishment drift at the bail stage and use sureties only as a means of last resort.

7.7 Final Remarks

The results of this study raise important questions about the use and treatment of an accused person’s friends and family by the criminal justice system. Throughout my go alongs and interviews, I interacted with many individuals hopeful that being surety would provide them with the opportunity and influence needed to persuade their loved one to make different life choices. Even in cases where this held true, the act of being surety came at a cost, both literally and figuratively. Responsibilizing friends and family to be de facto prison guards placed them in a position where they had to prioritize crime prevention over their relationship with the accused. Doing so extends the court’s gaze into the private lives of accused individuals while at the same time subjecting friends and family to similar penal control. For some, the benefits of keeping their loved one out of jail outweighed the costs of this control while for others, the costs were not worth the effort, leaving them feeling resentful towards the accused and cynical of a criminal justice system offers little protection.

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Vidal, S., & Woolard, J. 2017. “Youth's perceptions of parental support and parental knowledge as moderators of the association between youth–probation officer relationship and probation non-compliance.” Journal of Youth and Adolescence 46: 1–20.

Visher, Christy. 2007. “Returning Home: Emerging findings and policy lessons about prisoner reentry.” Federal Sentencing Reporter 20: 93–102.

Visher, C.A. and J. Travis. 2003. “Transitions from Prison to Community: Understanding Individual Pathways.” Annual Review of Sociology 29: 89–113.

Visher, Christy A., Vera Kachnowski, Nancy LaVigne, and Jeremy Travis. 2004. “Baltimore Prisoners’ Experiences Returning Home.” Washington, DC: The Urban Institute.

173 von Hirsch, Andrew. 1990. “The Ethics of Community-Based Sanctions.” Crime & Delinquency 36(1): 162-173.

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Wacquant, Lois. 2012. The wedding of workfare and prisonfare in the 21st century. Journal of Poverty: Innovations on Social Political and Economic Inequalities 16(3): 236–249.

Wakefield, Sara, Hedwig Lee, and Christopher Wildeman. 2016. “Tough on Crime, Tough on Families? Criminal Justice and Family Life in America.” Annals of the American Academy of Political and Social Science 665(1): 8-21.

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Legislation and Court Cases

Canada (Attorney General) v Horvath, 2009 ONCA 732

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Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11

Criminal Code of Canada, R.S.C. 1985, c.46, s.515.

R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509

R. v. Pearson, [1992] 3 S.C.R. 665, 1992 SCC 22173

R. v. Silveira, [1995] 2 S.C.R. 297

R. v. Tunney, 2018 ONSC 961.

Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872

Appendices Appendix A: Initial Interview Guide Current Life Circumstances

1) Ask informal questions about current life circumstances – are you employed? Attending school? Relationship status? Children? Children living in the home?

Expectations being a surety

1) Has anyone explained to you the legal obligations of being a surety? How did they describe the role? What do you expect being a surety will be like?

2) Have you been a surety in the past? For whom? Describe your experience(s).

3) What are the conditions of [accused’s name]’s bail release? How do you think these conditions might impact your life?

4) Are there any aspects of being a surety that make you feel uneasy or nervous?

Relationship with the Accused

1) How do you know [accused’s name]? Describe your current relationship with [accused’s name].

2) Describe how you felt when [accused’s name] asked you to be his/her surety. What made you decide to become a surety for [accused’s name]?

3) Do you foresee any challenges being [accused’s name]’s surety?

4) What would you do if [accused’s name] breached his/her bail? How would you feel if [accused’s name] breached his/her bail?

Experiences with the Criminal Justice System

1) Describe your experience(s) in bail court (so far). How would you describe the way you have been treated by duty counsel/Crown/JP? Did you feel you could ask questions or get clarification?

2) Given the circumstances, do you think the conditions of [accused’s name]’s bail are fair? Are there any conditions that you don’t agree with?

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Appendix B: Researcher Identified Demographic Information on Refusals Gender Race/ethnicity Age Relationship Additional Notes to the accused Female White/European 40s Wasn’t sure if she would be a surety Female White/European Early 20s Girlfriend Wants accused to stay in jail Female White/European 60s Grandmother Originally declined but later gave me her contact information. Never responded. Male South Asian Mid 50s Very limited English Female White/European 30s Did not want to commit or give me her information but requested study information and contact Male White/European 30s Significant Extremely nervous, fidgety. Described the other experience as a “royal pain.” Thinks “they’ll be watching her [accused] like a hawk.” He didn’t want to participate because he wasn’t sure what was going on - “No one will tell me anything.” Male Eastern European Late 40s Declined because “I don’t even know what’s going on.” Female White/European Late 40s Male Unknown N/A With an interpreter – limited English. Female White/European 40s Headed into bail vettor’s office Female White/European Early 50s Gave me her phone number but never returned my calls Male White/European 40s Just told to show up but has no idea what is going on Male White/European 40s Was a surety in the past but was not interested in participating Female White/European Female White/European Female White/European 20s Female White/European 20s Male White/European Has an interpreter – Limited English Male and Black Late 40s Have an interpreter – Limited English Female Female White/European 60s Accused’s Granddaughter agreed to participate but she girlfriend’s declined even though she responded to some grandmother of the interview questions Male Arab 50s Has an interpreter – Limited English Female White/European Early 30s Asked for my contact information. She was leaving the country so she didn’t want to commit. Male White/European 40s

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Female White/European Early 20s Female White/European Mother Declined participating because she said she was very nervous. While we were informally chatting, her son’s lawyer informed her that her son would be released on his own recognizance. Female Black 20s Female White/European Male White/European Female White/European 40s Male White/European 40s Female White/European 40s Female White/European 20s Sister Was a surety for her sister but today she’s here for her brother. Said “it’s weird that he needs to listen to me. The tables are turned since I’m his younger sister.” Ultimately declined. Female Indigenous 20s Female White/European 20s She said she just wanted to get this over with. She said this experience is very stressful and she doesn’t want to talk about it. Female White/European 50s Mother Currently a surety for her son. Here because he breached and she’s trying to be his surety again. She declined because she doesn’t have time. Female Black It’s her first time as surety and she doesn’t know what to expect. Male West Asian 40s

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Appendix C: Additional Demographic Information on Study Sample Name Gender Race/ethnicity Age Employment Relationship Surety History FU Status to the accused Preeti Female South Asian Early 70s Retired Mother Second time X Kathy Female White/European 60 Retired Mother First time for this X son (but was once before for her other son) Camilla Female Latin American 34 Unemployed Friend First time X Samantha Female White/European 31 Unemployed Friend First time X Jackie Female White/European 50s Unemployed Friend N/A - Tabatha Female White/European 24 Employed Friend First time - Donna Female White/European 65 Retired Grandmother First time X Hasdeep Female West Asian 25 Employed Sister Second time X Brooke Female White/European 23 Employed Sister First time for X sister (but twice in total) Suki Female White/European 48 Employed Sister First time X Leah Female White/European Mid 30s Unemployed Friend First time - Debbie Female White/European 56 Employed Aunt First time for X nephew (but twice in total) Darla Female White/European 45 Employed Mother Second time X Margaret Female White/European 55 Employed Friend First time for X friend (but twice total) Mable Female Indigenous 40s Unemployed Mother Surety before (but X denied this time) Paula Female White/European 57 Employed Mother Surety before (for X both sons) Lydia Female White/European 58 Retired Friend First time for X friend (but twice total) Emily Female White/European Early 20s Parental Girlfriend First time - leave Ronda Female White/European Late 60s Retired Mother Second time X Suzanne Female White/European 73 Retired Mother Second time X

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Elli Female White/European 36 Employed Girlfriend Second time X Genie Female White/European late 40s Employed Aunt Second time X Emily Female White/European 63 Retired Mother First time X Dakota Female White/European 24 Unknown Girlfriend First time - Josephine Female Black 40 Employed Mother First time X Eleanor Female Latin American 38 Unknown Girlfriend First time (but was denied) Alison Female White/European Late 40s Unknown Mother First time - Tatiana Female White/European 32 Unknown Friend First time - Cheval Female White/European Mid 20s Unemployed Girlfriend First time - Moira Female White/European Mid 20s Unknown Sister First time - Jacki Female Black 40s Employed Mother First time - Cynthia Female Southeast Asian Mid 30s Student Mother Second time - Shirley Female White/European 67 Retired Mother Second time X Star Female White/European 39 Employed Friend Second time X Trish Female White/European 20s Unknown Friend First time - Abigail and Female White/European 81 and 74 Retired Mother and First time X Daniel and Male father Mervin Male White/European 50s Employed Father First time - Miller Male White/European Late 50s Unemployed Friend First time for this X friend (but twice in total) Greg Male White/European Early 70s Retired Father Second time X

Lionel Male White/European 50s Employed Employer First time for this X friend (but says he’s been surety 15x in total) Ezekiel Male White/European 24 Employed Employer First time - Clifford Male Black 56 Employed Friend First time X Simon Male White/European 48 Employed Uncle First time X Zyler Male South Asian 22 Employed Brother First time - Johnny Male White/European 42 Employed Friend First time for this X friend (but twice in total) Bob Male White/European Late 60s Employed Employer First time - Rod Male Black 60 Employed Employer First time X

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Randy Male White/European 39 Employed Friend First time X Kersen Male West Asian 66 Recently Father Third time X retired Mohammad Male South Asian 40s Employed Brother First time (got - someone else to be surety) Joshua Male White/European Late 50s Employed Father First time - Barasa Male Black 33 Unknown Cousin Third time in total Silas Male Black 34 Employed Cousin Second time X Jack Male White/European 59 Employed Father First time for son X (but twice in total) Pascal and Male and White/European Both 60s Unknown Father and Surety before X Donna female mother Eileen and Female White/European Both in Employed Mother and Many times X Wyatt and Male their 40s father

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Appendix D: Follow-Up Interview Guide

Demographic Information

1) What is your year of birth? ______

2) What is your gender?______

3) With which racial/ethnic group do you identify? a. Aboriginal/First Nations/Metis b. White/European c. Black/African/Caribbean d. Southeast Asian (e.g. Chinese, Japanese, Korean, Vietnamese, Cambodian, Filipino, etc.) e. Arab (Saudi Arabian, Palestinian, Iraqi, etc.) f. South Asian (East Indian, Sri Lankan, etc.) g. Latin American (Costa Rican, Guatemalan, Brazilian, Columbian, etc.) h. West Asian (Iranian, Afghani, etc.) i. Other (please specify): ______

4) What is the highest level of education you completed? a. Some high school b. Completed high school c. Some college/university d. Apprenticeship training and trades e. Completed college/university f. Some graduate education g. Completed graduate education h. Professional degrees

5) Are you currently employed? Provide details.

6) What is your current annual legal income from employment? a. $0 b. $1-$4,999 c. $5,000-$9,999 d. $10,000-$14,999 e. $15,000-$24,999 f. $25,000-$34,999 g. $35,000-$49,999 h. $50,000-$74,999 i. $75,000-$99,999 j. $100,000 or more

7) What is your current relationship status? a. Single

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b. Dating c. Common law d. Married e. Divorced f. Widowed

8) How many children do you currently have? a. 0 b. 1 c. 2 d. 3 e. 4 f. 5 g. 6 or more

9) How many children currently live with you? a. 0 b. 1 c. 2 d. 3 e. 4 f. 5 g. 6 or more

Being a Surety

1) Describe your current role as surety? Walk me through a day in your life as [accused’s name]’s surety.

2) How does the reality of being a surety compare to your initial expectations?

3) What techniques/strategies do you use to make sure [accused’s name] follows their bail conditions?

4) How would you know if [accused’s name] broke one of their bail conditions?

5) How would you describe the level of supervision you provide for [accused’s name] on bail? Do you think the courts would be satisfied with this level of supervision?

6) Are there any bail conditions that you think are more important for [accused’s name] to follow? Less important? Explain.

Impacts of being a Surety – Surety-Accused Relationship

1) Describe your current relationship with [accused’s name].

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2) Has being [accused’s name]’s surety changed your relationship with them in anyway (positive or negative)? Explain.

3) Has being a surety caused any new conflicts or made existing conflicts worse in your relationship with [accused’s name]? Has it improved any existing conflicts?

4) What kinds of support are you currently providing for [accused’s name] while he/she is on bail? Were you providing this/these type(s) of support prior to being [accused’s name]’s surety?

5) Would you ever report [accused’s name] to the police? Why/why not? Describe what the circumstances might look like. How would you feel?

6) How do you think [accused’s name] would feel if you breached them or pulled your bail? How might this change your relationship with him/her?

7) How has the experience of being surety affected your willingness to provide support for the accused in the future? Would you be a surety again?

Impacts of being a Surety – Daily Life

1) Has your own life changed since becoming a surety? Explain.

2) Does your duty as surety interfere with your role as [accused’s name]’s mother/father/sister/brother/daughter/son/friend? Why (and in what ways)/why not?

3) What are the challenges of being a surety? How do you deal with these challenges?

4) Would you revoke your role as surety? Why/ why not? Describe what the circumstances would look like? How would you feel?

5) Are you getting any support from friends/family/CJS in your role as surety? If yes, describe the supports given and by whom. If no, why? Do you feel your role as surety would be easier if you had additional supports?

Role of the Criminal Justice System

1) Does the threat of having your bail money forfeited influence how you supervise [accused’s name]? Why (and in what ways)? Why not?

2) As a surety, how would you describe your relationship with the criminal justice system? What role does the courts, police, lawyers play in your day-to-day life?

3) Do you feel like being a surety puts you at risk of getting in trouble with the law (i.e. if [accused’s name] is caught breaching?)?

4) How would you feel if [accused’s name] was caught breaching?

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5) How would your feelings toward [accused’s name] change if you had to forfeit your bail amount because they were found guilty of breaching their bail?

6) Research suggests that more accused individuals need to have a surety to be released than ever before. Why do you think the courts rely on sureties so much?

7) Have your views about the criminal justice system changed since being a surety (i.e. the last time we spoke?)?

8) What advice would you give to someone who is thinking about being someone’s surety?