This paper examines the process and outcomes of bail hearings, focusing on cases where defendants’ hearings involved administration of justice and sentencing offences. The data analyzed for this project suggests that despite the presumption of innocence and non-punitive official objectives of judicial release, the practice by law enforcement and courts at this stage of the process tends towards punitiveness. These punitive responses are illustrated by three main findings that relate to the detention of individuals accused of administration of justice or sentencing offences, the number of conditions of release breached per combination of charges, and the breached conditions of release. These processes are understood through a durkheimian lens, using Fauconnet’s work which considers the social function of punitive processes as focused on annihilating the criminal act to establish social order. As will be seen, this function is achieved through the selection of a scapegoat that is rapidly punished, rather than appropriately assigning individual liability.

This paper argues that lower courts have used their discretionary powers provided within legislation and St-Cloud to infuse a predominantly retributive interpretation into the public confidence in the administration of justice ground of pre-trial detention. This is illustrated notably by their choice of and weight afforded to the various aggravating and mitigating factors, the circumstances that relate to the commission of the offence, as well as their analysis of the length of imprisonment. This transfer of sentencing rationales, and to a greater extent, retributivism, into the third ground of pre-trial detention is used, in part, to justify pre-trial detention and can partially explain the rates of pre-trial detention. Finally, the underlying sentencing logic within the bail process can be understood within a sociological perspective, which examines the wider social functions of institutions and suggests that the bail process is an extension of punishment that serves to reinstate social order and public confidence.