IV. Public conceptions
The infliction of a suitable ‘amount of punishment’ (Christie, 1993:25) is supposed to fulfil the principle of retribution, which should meet the public’s expectations (Brubaker, 1989; Larivee, 1993; Gerber & Engelhardt-Gree, 1996). In recent decades, the rise of ‘real life’ prison movies created moral panics by presenting prisoners as ‘monsters’ in need of separation from ‘sane’ society (Lombardo, 1981; Allen & Simonsen; 1986; Rafter, 1986; Nellis, 2003; Cohen, 1972). This ‘convict-bogey-syndrome’ (Allen & Simonsen (1986:52) has increased public scepticism of intermediate sanctions which are often perceived as too lenient, despite an initial ‘space-age appeal’ (Gainey & Payne, 2003:196). 91% of Brown and Elrod’s (1995) random sample of citizens in NY-state supported EMHD as an alternative to custody, but scepticism about its punitiveness and effectiveness as a control and deterrent instrument has increased (Payne & Gainey, 1999; Petersilia, 1997; Lilly & Ball, 1987, Lilly, 1989; Corbett & Marx; 1991; Houk, 1984; Rethinking Crime and Punishment, 2004). According to Nellis (2003), the tendentious negative presentation of EMHD in the media and popular culture contributes to this fragile nature of public trust, which is often based on a lack of information (Roberts, 1992; 1997; Vandover & Giacopassi, 1997). Gainey & Payne (2003) demonstrated that a sample group surveyed before and after a lecture which stressed the ‘pains’ associated with EMHD was afterwards more likely to judge EMHD as punitive. However, ‘the severity of a punishment is best defined as the pain actually felt by the offender, not the pain intended by the public’ (Spelman, 1995:109).
V. Offenders’ experiences
Although many studies have analysed the ‘prison experience’ (i.e. Richards, 1978; Van-Voorhis, 1993; Cressey, 1961, Sykes, 1958), impacts of intermediate sanctions has been more rarely explored (Crouch, 1993; Petersilia & Deschenes, 1994a, b; Wood & Grasmich, 1995; Lilly & Jenkins, 1989). Studies concerned with EMHD often also had a small sample size and were poorly designed (Enso et al., 1999; Whitfield, 1997), concentrating on variably defined ‘successful completion’, but neglecting psychological as well as individual differences (Maidment, 2002; Dodgson & Mortimer, 2000; Eiserer, 1998; Petersilia, 1998).
International research presents mixed results. Although monitorees appreciated not being in jail, many complained about uncomfortable equipment, disruptive surveillance methods, a deterioration in their relationship with family members and/or friends and work-related problems such as inflexibility preventing them doing overtime (Whittington, 1989; Renzema, 1992; Walter, 2002; Walter et al., 2001; Dodgson et al., 2001, Gibbs & King, 2003). The curfewees interviewed by Spelman (1995) viewed serving a year in a county jail as closely equivalent to spending a year on EMHD. Studies which analysed the perceptions of prisoners given a real-live choice of EMHD found that between 5-15% of prisoners selected to serve the incarceration periods (Heggie, 1999; Church & Dunstan, 1997). Perersilia’s (1990) study even indicated that more then 30% preferred imprisonment. Particularly black, unmarried, older males and those widely exposed to institutional corrections refuse intermediate sanctions (Crouch, 1993; Spelman, 1995). In England, all participants of the 1989 pilot project experienced EMCOs as ‘severely restricting, intrusive and similar to custody in their own home’ (Nee, 1999:36). Although technical support and the information policy improved over the next decade (Nee, 1999), Walter’s (2002) evaluation of the national roll-out of EMCO confirmed that curfewees perceived EMCO as genuinely restrictive and as a ‘last chance’ before prison. Former imprisonment seemingly mitigated the experience of punitiveness, since the survey of the first prisoners released on HDC was very supportive (Mortimer, 2001; Dodgson et al., 2001). Only 2% would have preferred custody to HDC. 5% were recalled to prison following a breakdown in their curfew, whilst 17% of those sentenced with an EMCO could not complete it successfully (Walter, 2002). In comparison, other community sentences had a breach rate of 29% and probation orders 19% (Walter, 2002). 82% of HD-curfewees viewed ‘being out of prison and meeting up with family’ (Dodgson et al., 2001:v, 42) as the main advantage, but 41% found EMHD’s incapacitative aspect as at least disadvantageous. Monitorees who lived alone felt isolated (Dodgson et al., 2001), but the greatest problems were reported by those whose relationships broke down during the monitoring-period or who had to leave their home for another reason (Walter, 2002). Without suitable accommodation, monitorees were returned to prison. This pressure to get along with the sponsors and the enduring experience of boredom and monotony caused distress (Padel, 2004/05). Accordingly, anger management proved to be difficult within the household or with the monitoring staff (Dodgson et al., 2001).
Dodgson et al. (2001), who, in contrast to another major Home Office study about EMHD (Walter et al., 2001), at least briefly mentioned offenders’ experience, remarked that motivation and discipline were key issues in complying with the curfew. However, they did not conclude that this offender-typical lack of self-control (Hirschi, 1969) requires structured rehabilitative support.
In order to measure its retributive effects, Payne & Gainey’s (1998) US-study applied Sykes’s (1958) pains of imprisonment, the deprivation of autonomy, goods, services, liberty, heterosexual relations and security to EMHD. Although there was overall satisfaction about not being imprisoned, the small sample’s experiences resembled prisoners’ pains, albeit monitorees felt safer at home. 92.59% described the deprivation of autonomy as the most intense pain. Statements such as ‘It is like being on punishment from my mother and having to give up my allowance’ confirm Sykes’s assertion that
‘Of the many threats which may confront the individual...there are few better calculated to arouse acute anxieties than the attempt to re-impose the subservience of youth’ (1958:76).
Furthermore, 85.2% suffered from deprivation of goods and services; 29.6% reported difficulties with intimacy and 33.3% suffered from watching others moving freely. Overall, EMHD was perceived as punitive. Although the amount of pain regarding Sykes’s (1958) prison criteria may be mitigated, additional stress-factors such as shaming and the ‘watching-others’ effect apply. A further study by Payne & Gainey (2000) confirmed monitorees’ perceiving EMHD as safer than jail and helpful in rearranging their personal situation. However, great distress was related to the imposed restrictions in freedom and privacy. Yet, those social restrictions as well as the sanction’s disruptive nature, are appreciated as ‘just desert’ by its proponents (Gibbs & King, 2003). Interestingly, only 6.4% of the public view EMHD as a violation of a person’s right to privacy (Elrod & Brown, 1995).
Another source of stress lies in the internalisation of EMHD’s control mechanisms (Gibbs & King, 2001, 2003). One detainee reports
‘I was nearly in tears the other night, because....I was 20 minutes late. I thought, ‘Oh no, if I’m ...late I'll probably get recalled.’ It was such a big stress factor (Gibbs & King, 2003:11).
This evidence of offenders’ becoming ‘bearers of their own surveillance” (Lyon, 1994:133) corresponds to EMHD’s character as a ‘hypersurveillant control’ (Bogard, 1996:4) which leads to panopticism, the rationalisation of social control as the generalised model of domination and control (Foucault, 1979). Hence, EMHD may become more onerous in terms of self-discipline than custody (Fox, 1987).
EMHD requires that certain people such as family, neighbours, co-residents, employers are informed , which may result in offenders and their co-residents being embarrassed, wanting to conceal it from other people (Von Hirsch, 1998; Heggie, 1999). Hence, shaming effects enhance the suffering caused by EMHD’s visible incapacitative effects on monitorees’ daily life (Gibbs & King, 2003; Gainey & Payne, 1998). This furthers social retreat and weakening of social bonds, which, following Hirschi’s (1969) control-theory, encourages deviancy. However, Braithwaite (1989) argues that if criminal sanctions are re-integrative instead of stigmatising, they can deter offenders from recidivism. According to Sherman (1993), EMHD fulfils this expectation as monitorees experience not only punishment but also fair treatment which helps them to reconsider their situation and to return to an orderly lifestyle. Supporting this hypothesis, studies (Gainey & Payne, 1998; 2000; Mainprize, 1995) observed that female or married monitorees and those living in rural areas or working in white collar employment were prone to a higher level of shame and were less likely to re-offend. However, without rehabilitative support, EMHD’s re-integrative shaming potential remains unused and its everyday reality becomes easily disillusioning. Some monitorees experience their order as unjustifiably long (Smith, 2001), others admit they would have preferred prison if they had known the ongoing affliction beforehand (Gibbs & King, 2003).
Nevertheless, the readiness for participation in monitoring programmes is high, due to the desire to be out of prison (Walter, 2002). Gibbs & King’s (2003) New-Zealand study confirmed the English experience (Dodgson et al., 2001, Walter, 2002) that EMHD was evaluated mainly positively, especially by former prisoners. Many curfewees reported positive self-development such as increased positive thinking, self-discipline, organisational ability and creativity with time. However, these changes are seemingly superficial and restricted to the curfew-period, as one detainee admits (Gibbs & King, 2003:11):
‘My biggest worry is, that when this bracelet is removed, that I’m going to fall back into that scene. I’m not on there at the moment because its a case of I can’t.’
To conclude, in accordance with Beccaria (1970/1764), EMHD is not ‘overly punitive’ (Payne & Gainey, 2000:92), but painful enough to fulfil retributive claims (Baumer & Mendelsohn, 1990; 1992; Walter, 2002; Dodgson et al., 2001, Gibbs & King, 2003). However, incapacitation is restricted to outdoor activities during the curfew, deterrence is limited to the curfew period and rehabilitation is mostly not even attempted (Young & Matthews, 2003). Largely ignored is that changes implicated by EMHD concerning lifestyle, limitations of movements, interactions under duress, exclusion of preferred relationships and shaming affect different offenders differently, according to individual interactions between imposed personal/social characteristics and obligations (Martinovic, 2002). EMHD’s impacts are said to be more onerous if monitorees are female, older, have a medical problem (Gainey et al. 2000), live in a rural area (Gainey & Payne, 2000), lack social support (Doherty, 1995), have employment related problems (Crouch, 1993) or a lengthy, serious experience with the criminal justice system (Spelman, 1995).
VI. Vulnerable ‘Monitorees”
Criminal justice practitioners regard young offenders who ‘often offended at night or with peer groups’ (Walter, 2002:4) as particularly suitable for EMHD, which is reflected in the current legislation. Limited liberty of action should reduce their contact with delinquent companions (Charles, 1989; Elliot et al., 2000). The ‘tag’ provides them with an excuse not to participate in criminal activities, but to stay at home instead (Nellis, 2003). Although avoidance of high-risk situations is said to be a major advantage of EMHD, young offenders seemingly find it difficult not to succumb to the temptation to abscond (Roy, 1997), which may depend on ongoing peer pressure (Elliot et al., 2002; West & Farrington, 1973; 1977). Curfewees younger than 18 had a breach rate of 22% and were significantly more likely to have their orders revoked than 18-20 year olds of whom 84% completed without revocation, whilst only 9% of those aged 40 and older breached their orders (Walter, 2002). According to Elliot et al. (2000), 10-15-year olds saw their tag either as a trophy or a stigma. The former attitude initiates labelling and self-fulfilling prophecy mechanisms (Becker, 1963), while the latter attitude also encourages further deviancy, if there is no structured support by significant others to direct this shaming-experience into a re-integrative one (Braithwaite, 1989) is provided.
Another vulnerable sub-group of monitorees are females, who compromise 10% of all ‘tagged’ in England (Walter, 2002; Dodgson et al., 2001). Partly due to gender-bias (Walklate, 2004), women are likely to be evaluated as low-risk offenders and therefore particularly suitable for EMHD (Walter, 2002; Dodgson et al., 2001).
However, despite advantages such as the maintenance of child care, the lack of gender-equality within the Criminal Justice System and society (Chesney-Lind, 1997; Belknap, 2001; Boritch, 1997; Faith, 1993; DeKeseredy, 2000; Smart, 1989; Loucks, 2004) can make EMHD ‘a more onerous and draconian form of punishment than incarceration’ (Maidment 2002:48).
First, familal support is rare. 50% of the female monitorees participating in Maidment’s Canadian study (2002) were single mothers, living alone with their children, whereas the overwhelming majority (93.75%) of males reside either with a female partner or with other family-members (Walter, 2002; Gainey & Payne, 2003; Gibbs & King, 2003). Secondly, unsupportive male cohabitees easily become an additional source of strain, causing self-blame, as this comment shows:
‘He (husband) hated it. It was like, ‘Get out, will you!’ ...It caused a lot of problem because he basically had to leave his own home’ (Maidment, 2002:56).
Furthermore, home detention reinforces traditional gender roles, which, together with an incapacity to fulfil a wider range of outdoor housewife-duties such as shopping, child-transport etc., evokes feelings of inadequacy and frustration, which cause conflict within the family or the relationship (Maidment, 2002). Single mothers lacking money, peer and family support feel additional guilt and shame since they are unable to participate in outdoor activities with their children, who automatically suffer restrictions, too.
Whilst many male monitorees with children welcomed the opportunity to increase their common leisure time (Dodgson et al., 2001; Gibbs & King, 2003), women were more sensitive about the stigma attached to EMHS and its consequences for their family life. In contrast, men experienced frustration due to boredom and persistent temptations to participate in outdoor recreational activities (Dodgson et al., 2001; Smith, 2001, Walter, 2002). 50% of females noted problems with wearing the device in comparison with 16% of men who were generally more concerned about comfort, whilst women feared how the device may affect their appearance, identifying them as offenders (Payne & Gainey, 1998).
A considerable number of women confessed that compared to prison ‘serving their time at home’ was more difficult (Maidment, 2002; Gibbs & King, 2003). A female detainee admits:
If I didn’t have my kids, I think I would have preferred to go to jail... It wasn’t like I expected, I thought there would be more help and visitors more often.’ (Gibbs and King, 2003:80).
EHMD’s incapacitative effects place additional burden on female curfewees who are required to ‘do more for less,’ while the government realises substantial cost savings. This aggravated punitiveness is expressed in women’s lower ‘success’ rate (Walter, 2002; Dodgson et al., 1999; Smith, 2001). For instance, 19% of EMCOs for women were revoked, compared to 15% for men (Walters, 2002). In Scottish trials, 3 of 9 female monitorees breached their orders (Smith, 2001). However, none of those studies acknowledges that women have specific need and that adjustments that support care-giving responsibilities must be made (Miucci et al., 1997; Wood & Grasmick, 1995).
VII. Effect on Sponsors
Last, but not least, the daily life of family members or partners supporting the detainee is significantly affected. Such ‘sponsors’ are often women, wives, partners or mothers, who, feeling obligated to take over responsibility (Gibbs & King, 2003), suffered from restrictions on their daily routines, money, time and energy (Gibbs & King, 2003; Dodgson et al., 2001, Walter, 2002). Like monitorees, they experience the dichotomy between the relief of having the monitoree at home and the tension created by enforced intimacy (Walter, 2002; Gibbs & King, 2003; Dodgson et al., 2001). Some sponsors endure ungratefulness and exploitation (Gibbs & King, 2003). Many suffer from the supervision which affects them, too, for instance by late night calls (Walter, 2002; Dodgson et al., 2001). The severest stress has been found to arise in relationships which experienced problems before, where the detainee felt left alone for too long and when children’s outdoor activities or outdoor duties in general were affected (Gibbs & King, 2003; Walter, 2002; Doherty, 1995). 78% of the offenders questioned by Baumer & Mendelson (1992) admitted that their sponsors had complained about EMHD. In Gibbs & King’s (2003) study, half of both the sponsors and the detainees experienced tensions in their relationships due to EMHD, although positive adjustments were also notified. In a Home Office study (Dodgson et al., 2001), 96% of sponsors felt that HDC made little or no difference to their relationship with the detainees, whilst 25% even observed an improvement. Concerning juveniles being monitored, parents welcomed knowing ‘where their errant offspring were at night”, but felt a ‘crushing burden of responsibility.’ (Smith, 2001:207).
VI. Results of EMHD-programmes
Completion rates as high as 72-95% have been reported for EMHD-programmes in England and Wales (Mair & Mortimer, 1996; Mortimer et al., 1999; Mortimer, 2001; Smith, 2001; Walter, 2002; Dodgson et al., 2001) and were highest with HDC. However, Dodgson et al. (2001) only counted those being returned to prison as non-completions, whilst not all violations were counted as breaches, so these did not lead automatically to revocations of the HDC- licence. From those on EMCO returned to court for a breach action, 24% continued their curfew with an additional fine. 33% received no action and 23% of those whose orders were revoked got a further curfew order (Walter, 2002).
Successful completion depended on the offence, offender type and fear of custody (Mortimer et al., 1999; Dodgson et al., 2001; Walter, 2002). 97% of Crown Court orders, but only 68% of Youth Court orders were completed (Mortimer et al., 1999). Typical curfewees were young males with a long history of offending (Sugg et al., 2001). The most common offences were theft and handling (23%), driving whilst disqualified (15%) and burglary (10%) (Walter, 2002). However, theft and handling had the lowest completion rates at 79%, whilst the most successful were public order offences (92%), drug offences (92%), driving whilst unfit (91%) and violent offences (90%) (Walter, 2002). These results, confirmed by Scottish experiences (Smith 2001), are linked with EMHD’s restrictive incapacitation effect which interrupts the patterns of offending (Dodgson et al., 1999). Though, as far as HDC is concerned, the highest breach rate was for offenders convicted for burglary (10%) and the lowest (2%) was for fraud or forgery convicts (Dodgson et al., 2001). How the ‘toughening of the clientele’, implemented by the inclusion of long-term sentences in the HDC-scheme, will affect completion rates is unclear. On the one hand, the more extensive an offender’s criminal record, the more likely failure is (Bonta et al., 2000a; Roy, 1997). On the other hand, Gainey et al. (2000) argue that the longer the monitoring period, the greater the likelihood of successful completion.
Independently from the offence, monitorees’ ability to keep themselves busy, to accept the imposed rules, to receive reinforcement and to believe in an immediate and severe response in case of any breach promotes successful completion (Gibbs & King 2003; Walter, 2002; Dodgson et al., 2001). However, both structured support and immediate ‘response costs’ (Weiner, 1962; Kazdin, 1972) are lacking.
Re-offending rates of former EM-detainees vary from 10-30% (Dodgson et al., 2001, Mortimer, 2001) to 70-90% (Sugg et al., 2001), according to definitions and measurement of recidivism. Generally, recidivism rates are lower for older offenders and for those on early released from prison (Gibbs & King, 2003; Dodgson et al., 2001). However, Bonta (1999) argues that EM has not significantly reduced the re-offending of low-risk offenders, the main group of monitorees. As far as high risk offenders are concerned, Finn & Muirhead-Stevens’ study (2002) revealed that ‘tagged’ sex offenders were .18 times less likely to return to prison than the non-tagged control group. Yet, this is probably due to ongoing intensive treatment (Bonta et al., 2000 b; Finn & Muirhead-Stevens, 2002).
Hence, there is no convincing evidence that EMHD reduces criminal activities of detainees during or after its completion (Enos et al., 1999, Tonry, 1998, Whitfield, 1997; Gibbs & King, 2003; Bonta, 1999; Bonta et al., 2001). Monitorees themselves were sceptical about its ability to prevent them from re-offending (Gibbs & King, 2003:12). This is even the more true if no intervention programmes are provided which reinforce socially desirable behaviour, engage in positive interactions and help to develop concrete future plans (Redd et al., 1975; Azrin & Holz, 1966, van Houten & Doleys, 1983; Bonta, 1999; Bonta et al., 1999; Enos et al,. 1999; Lilly et al., 1993).
Therefore,
‘Electronic Monitoring... in England and Wales diverts few people from prison, enables some to be released earlier from sentences ...and has no impact on re-offending rates. It also has none of the other positive outcomes...Unfashionable as they may be, the arguments about the civil liberties of offenders and their families voiced when EM was first proposed in the early 1980s still hold true.”(Padel, 2004/05:11).
In Germany, on the grounds of civil liberties, EMHD has not yet been foreseen (Haverkamp, 2003; Wirth, 2000). In England and Wales, where the ECHR became law in 1998 under the Human Rights Act, the CJA 2003 enhanced the role of EMHD (Ward & Davies, 2004; Taylor et al., 2004, Gibson & Watkins, 2004). At 31.03.2005, 10,698 offenders were electronically monitored, 53.85% on adult Curfew Orders, and 27.92% on HDC (National Probation Service, 2005). Currently, further technological refinements of the ‘prison without bars‘ (Blunkett 2004, cited in Patterson, 2004/5:3) are being tested (National Probation Service 2005). The highly controversial anti-terror legislation also relies on electronically monitored control orders (Lea, 2005). On 11th March 2005, 8 terror suspects who had been interned with neither charge nor trial since the 9/11 attacks were released on bail under strict conditions including ‘partial house arrest with a night-time curfew and tagging’ (Travis, 2005). One of them tried to commit suicide 11 days later (JazzFm 2005).
IIX. Conclusion:
Von Hirsch evaluates EMHD’s overall justification, ‘the anything but prison theory’, as ‘a version of a wider misconception that an individual cannot complain about how he is being punished if something still nastier could have befallen him’ (1993:81). Truly, the fact that offenders themselves are relatively positive about EMHD neither invalidates its punitiveness nor justifies the actual ‘scattergun-approach’ (Whitfield, 2001). Physical and psychological constraints, next to social shaming secure retribution as well as ,partly and temporarily, incapacitation and deterrence. However, despite EMHD’s potential to punish and treat (Schwitzgebel, 1969; Lilly et al.,1992; Papy & Nimer, 1991; Payne & Gainey, 1998; Gainey & Payne, 2000), ‘new behaviorism’ (Cohen, 1983) management techniques neglect costly rehabilitation. Yet, one of the strengths of EMHD is its informal shaming effect which has the capability to initiate a therapeutic process. However, Sykes’s notion that ‘modern society does expect the tyranny of captivity to serve a useful purpose beyond that of keeping known criminals confined’ (1958:132) is seemingly as old-fashioned as the concern with civil liberties (Pratt, 2002; Rose, 2000). This is confirmed by the focus on cost-effectiveness versus the low attention given to legal psychological aspects such as EMHD’s individual impacts on offenders. However, whether ‘tagging’ helps with ‘tackling’ crime, cannot be affirmed at on the basis of knowledge. Even government-sponsored research results are contradictory. Fact is that imposing EMHD may result in inequitable punishment that depends on offender’s personal and social characteristics. Detainees, particularly females, may experience a similar or even elevated pain compared to custody. Hence, although deterrence, incapacitation and rehabilitation are either neglected or insufficient, EMHD fulfils, contrary to public perceptions, its retributive aspect as it does punish, but not only the offender. Financially and emotionally stretched sponsors are, at best, exposed to extra responsibilities and, at worst, to increased tension, aggression or crime in their homes.
Bentham’ s (1970) utopia of a panopticon-prison has come closer then ever. However, whilst Bentham’s utilitarism justifies the penetration of the ultimate intimate sphere with the creation of the greatest happiness for as many people as possible, cost-efficiency and risk-management are today’s justifications for severe restrictions on civil liberties and individual well-being even of non-delinquents (Boutellier, 2004; Beck, 1986; Baumann, 2001). The tag is made to ‘fit’ (Mortimer et al., 1999), not ‘because it fits the offender... but because it fits with current policy interests and priorities’ (Matthews, 2003:233). The entrance fees into the ‘virtual prison’ (Roberts, 2004) are civil liberties and wide-ranging psychological effects on offenders who, exposed to social shaming, are left to the care of their families or to their own devices.
Indisputably, alternatives to prison must be found (Jacobson, 2005). EMHD could provide such an alternative, but only if so far neglected legal psychological aspects are considered. For instance, legal psychologists should contribute to an improved selection, preparation and supervision process, regarding individual needs of monitorees.
Although its new generic sentences theoretically support the individualised combination of rehabilitative measures with EMHD, it is likely that the CJA 2003 enhances the current practice of EMHD’s careless, but ‘cost-effective’ use, which remains a source of legal psychological concern.
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