Is the increased use of electronically monitored home detention (EMHD) as recently confirmed in the CJA 2003 justifiable from a legal-psychological perspective? EMHD is said to be more humane, rehabilitative and especially less costly, than impriso

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Is the increased use of electronically monitored home detention (EMHD) as recently confirmed in the CJA 2003 justifiable from a legal-psychological perspective?

I. Introduction

The major shift from corporal to carceral punishment in the late 18th century made prison the means to discipline and punish (Foucault, 1979). This development was based mainly on the discovery that ‘it was more efficient and profitable in terms of economy of power to place people under surveillance than to subject them to some exemplary penalty” (Foucault, 1980:38). Since then, questions of effectiveness have had a large influence on penalty measures. Nevertheless, until recently, imprisonment had been corporal, holding ‘the prisoner fast within the prison walls and directing its excruciating impressions against his body and soul’ (von Hentig, 1937:206). However, technological advances in our ‘culture of control’ (Garland, 2001) have led to shift towards the ‘Benthamesque industrial-age prison’ (Cavadino & Dignan, 2002:69), providing constant surveillance through transparent rooms. In 1964, Harvard psychologist Dr. Ralph Schwitzgebel developed a one-kilogram Radio telemetry device, wearable by a person (Renzema, 1992). Schwitzgebel (1969; 1971) saw potential of his ‘electronic rehabilitation system” in reducing offences, facilitating therapy and providing humanitarian advantages. Specific deterrence and the internalisation of control in ego-defective offenders should reduce crime by harnessing the equipment’s ability to ensure accountability for behaviour within a therapeutic relationship (Schwitzgebel, 1969).

This potential to induce psychological developments has been largely neglected in the practical use of Electronic Monitoring (EM), which started in the early 1980s when New Mexico judge Jack Love, inspired by a ‘Spiderman comic,’ ordered the development of a monitoring bracelet for offenders on probation (NARCO, 1988; Rondinelli, 1997; Whistfield, 1997, 2001). Since then, its use in the USA expanded steadily (Liverani, 1998). In 1998, about 1,200 programmes supervising 95.000 detainees involved electronically monitored home detention (EMHD) (Scottish Executive, 2000:3). These developments occurred at a time when community based ‘intermediate’ sanctions were becoming popular and were highly praised for their potential to reduce the steadily growing prison population (Richardson, 1999; Morris and Tonry, 1990). Many countries including England and Wales followed the American example eagerly and uncritically (Christie, 1993; von Hirsch, 1992). Despite ongoing criticism concerning its ethical and legal aspects (Bishop, 1996; Mair & Mortimer, 1996; Whitfield, 1997; Mann, 1998), EMHD was established as a cost-effective alternative to prison and a risk-reducing community sentence-component.

EMHD, judged to be more lenient than prison, but harsher than probation, claims to achieve broad-ranging punishment goals such as retribution, deterrence and incapacitation, but also rehabilitation (Ball & Lilly, 1988; Lilly, 1992; Payne & Gainey, 2000). However, there is a lack of convincing evidence (Bonta et al., 2001; Bonta, 1999; Sugg et al., 2001; Mortimer, 2001; Padel 2004/05).

EM is mainly used in combination with curfew-orders (CO), which demands that the offender remains at a place specified by the court for certain periods of time (Taylor et al., 2005). Those monitored are obliged to wear an electronic device which constantly sends radio frequency transmissions to a phone-connected receiver unit linked to a central computer. If the subject goes out of range, a signal break is immediately registered (Patterson, 2004/05; Mukherjee, 1999; National Probation Service, 2005).

Introduced as a primary sentence for adults, EMHD has been used in the pre-trial supervision of defendants, with juvenile offenders, as an alternative to revocation of probation, and as an additional component of probation and parole supervision (Erwin, 1989; Courtright et al., 2000; Enos et al., 1999; Lilly et al., 1993; Lilly et al., 1992; Tonry 1998; Maxfield & Brauner, 1992; Davis & Lockman, 1995; Raider, 1994, Roy, 1994, 1997). In England and Wales, each of the above-mentioned possibilities is foreseen and expanded by recent legislation, as discussed in the following chapter of this essay which critically evaluates EMHD, from a so far neglected legal psychological perspective.

II. Legal background in England and Wales

The Home Office’s statement in its Green Paper (1988:8) ‘Liberty under the law is highly valued by all of us. The deprivation of liberty is the most severe penalty in courts’ proclaimed, at least rhetorically that despite a continuously growing prison gulag (Stern, 1993; Young, 1999), custody is at the end of the continuum of restrictions on offender’s freedom of action. To diminish both the restrictions on offenders’ civil rights and the high cost of imprisonment, the Criminal Justice Act 1991 created the framework for a curfew order secured by electronic monitoring, popularly known as ‘tagging’ (Lilly, 1990; Nellis, 1992) as one of several newly created ‘community sentences.’ Provisions were made for private sector agencies to be given responsibility for monitoring, including preparation and follow-up actions (Ward & Davies, 2004; National Probation Service, 2005). Hence, the gates were opened for a promising alternative to custody  for ‘dangerous, serious and seriously persistent offenders and those who have consistently breached community sentences’ (Home Office, 2002; Ashworth, 1998). However, a pilot project in 1989 did not fulfil those high expectations. Mair & Nee (1990) found a generally low acceptance by practitioners and a high failure rate: of 50 defendants, 18 broke the conditions and 11 re-offended during the observance.

Nevertheless, amendments in the Criminal Justice and Public Order Act 1994 (S.9; para 41) allowed for electronically monitored curfew orders (EMCO) in selected areas, (Mortimer et al., 1999). After a low initial take-up, these trials resulted in fewer equipment failures and a breach-rate of only 20% (Mair & Mortimer, 1996;  Mortimer & May, 1997; Whitfield, 1997).

Tagging was originally imposed on offenders otherwise facing custody (Mair & Mortimer, 1996; Mortimer & May, 1997), but soon, its use was largely extended. After all courts in England and Wales got the power to issue EMCOs in December 1999, ‘ exclusion orders’, which require an offender to stay away from a certain place, to be monitored(s46). In 2001, EM was made an integral part of the most rigorous community sentence applicable for persistent young offenders, the Intensive Supervision and Surveillance Programme (ISSP) (Youth Justice Board, 2005). Prior to this, EMCOs had been made applicable to children aged 10-15 (Section 43 of the Crime Act 1997). Finally, ss37-40 of the Power of Criminal Courts Act 2000 (PCC(S)A) implemented EMCO for those over 16 with a maximum length of 2-12 hours daily for 6 months. Another substantial extension of ‘tagging’ occurred with the introduction of home detention curfews (HDC) for those on early release from prison (Crime and Disorder Act 1998). From January 1999 to September 2004, 101,918 prisoners were released up to 4.5 months early on HCD (Home Office 2004 cited at Padel 2004/05). Home Office funded research hailed HDC-programmes a success: in their first year, 21,400 prisoners, 30% of the eligible population, were released early and 95%  completed their curfews without revocation (Dodgson et al., 2001; Mortimer, 2001). Since 01.06.2002, defendants aged 12-17 charged with serious offences may be ordered on EMHD as a bail condition (s.3AA of the Bail Act 1976 and s.23AA of the Children and Young Persons Act 1969.)

The Criminal Justice Act (CJA) 2003 enhances the use of EMHD. Its section 204 re-enacts PCC(S)A 2000, s37 and confirms its time limitations (2-12h daily for 6 months), which is also foreseen for post-trial curfews requirements (s207(3)-(5)). However, the Secretary of State may amend those time periods, which, similar to the powers foreseen in the Prevention of Terrorism Act, breaches the traditional separation of powers according to which only the judiciary can impose restrictions on liberty (Lea, 2005).

Before inserting a curfew requirement, the court must evaluate information about the place specified in the order, including the attitude of persons affected by the curfewee’s presence (s204(6)). Conflicts with religious beliefs, other relevant orders and working or educational requirements must be considered (s217). Each curfew (s204) or exclusion (s205) requirement demands the implementation of an electronic monitoring requirement EMR (s215) if no exceptional conditions (s.204 (2)-(4)) apply. EM cannot be ordered alone and the consent of a third person, without whose co-operation the monitoring is impracticable, must be obtained (s215(2 )).

An EMCO may become a requirement during the supervision period of a suspended sentence (s190) and HDC is foreseen as a requirement of the new custody-plus orders (s182). Sections 246(1), 250(5) and 253 empower the release of fixed term prisoners under HDC up to 135 days, which now embraces sentences of 4 years or more (Taylor et al., 2005).

If any curfew requirement is breached, a warning system applies first (Schedules 8 and 10 CJA 2003). In addition, the order may be amended. Of 57% of EMCOs  revoked following  first breaches, 19% ended in custody (Walter, 2002), which practitioners criticise as too lenient and inconsistent (Walter, 2002; Walter et al., 2001).

CJA 2003 makes EMHD into an integrated option integrative in each community or custody-plus order or suspended sentence (Taylor et al., 2005; Keogh, 2004), thereby extending its use (Padel, 2004/05). Hence, the vision of ‘tagging’ as ‘the future of community punishment ...used to monitor offenders wherever they are in the community’ (Straw, cited at Home Office, 1997) has come close.

III. Potential and dangers of EMHD

EMHD is said to be more humane, ‘rehabilitative” and especially less costly, than imprisonment (Richardson, 1999). Home Office-sponsored research (Dodgson et al., 2001) calculated that the HDC-scheme saved 36.7 million GBP due to 1950 less prison places in its first year of operation. Furthermore, EMHD should prevent prison overcrowding  while maintaining surveillance and strict control (McCarthy & McCarthy 1997; Palumbo et al., 1992). Offender’s exposure to imprisonments well-known distressing effects (Zimbardo, 1999; Keay, 2000; Loucks, 2004) is avoided or shortened. Although ‘the wearing of a device carries its own psychological pressures’ (Black & Smith, 2003:4), imprisonment’s social stigma falls away (Stacey, 1995; Stone, 1995).

Curfewees were expected to benefit from the enforced break in their former behaviour pattern, the establishment of a new routine in a formerly ‘chaotic’ life and the maintenance of social, religious and family bonds (Black & Smith, 2003; Liverani, 1998; Morris & Tonry,1990; Doherty, 2004). Yet, detainees may be unable to create constructive activities and family member may feel overburdened (Jarred, 2000; Gibbs & King, 2003; Baumer & Mendelsohn, 1992). Furthermore, EMHD’s incapacitation effect, supposed to improve public safety, is limited (Padel, 2004/05). Neither offending inside the home, such as drug-dealing, nor crimes in the community during non-curfew periods, can be prevented (Padel, 2004/05 Black & Smith, 2003). Intra-familial violence may even increase under the distress of the continuous surveillance (Walter, 2002; Gibbs & King, 2003; Padel, 2004/05).

Monitoring firms may also fail to notice the removal of the tag, as happened 1999 in Nottingham’s ‘jeweller murder’ (Felstrom & Jenkins, 2005).

From a broader perspective, defenders of civil liberties (i.e. Wade, 1988; Mculloch, 1997, Ashworth, 1995; 1998; Rutherford, 1986, Baumer & Mendelsohn, 1992) are concerned about EMHD’s 'Orwellian' nature’ (Mann, 1998:5), particularly its social ‘branding’ which alienates a growing criminal underclass (Whitfield, 2001), its discrimination against people without the necessary accommodation or social support, the use of private contractors gaining ‘profit from crime’ and the general net-widening. Offenders otherwise either released from pre-trial detention or sentenced with a probation order may be tagged as a more intrusive measure (Doherty, 2004, Ashworth, 1998; Tournier, 2003). Walter (2002) calculated that only between 20% and 25% of EMCO’s were imposed on offenders otherwise committed to custody.

‘The electronic ball and chain’ (Gibbs & King 2003:2) has shifted surveillance and control of offenders from prison into the community and their homes. EMHD’s involvement of offenders’ families and personal support networks in regulatory practices which were previously state territory has led to the highly controversial issue of ‘responsibilization’ (Garland, 1996; Rose, 2000). Furthermore, EMHD is not rehabilitative in itself (Sugg et al.,2001; Andrews & Bonta, 1998; Bonta et al., 2000b in Finn), but it can ensure the compliance with structured rehabilitative programmes (Mortimer et al., 1999), which have been largely ignored (Nee, 1999; Padel, 2004/05). Although offenders themselves stress their need for support programmes (Gibbs & King, 2003), rehabilitative or restitutive components are lacking for English and Welsh adults sentenced to EMCO and supervised by unqualified private sector-staff (Nee, 1999; Nellis, 2000; Mortimer, 1999). However, the combination possibilities within the new generic community sentences theoretically allow a more re-integrative, individualised approach.

From a legal perspective, EMHD endangers the principles of equal respect, privacy and dignity, which may fall foul of Art. 8 of the European Convention on Human Rights (ECHR), (Ashworth, 1995). Furthermore, because most prisoners believe that HDC is preferable to prison (Dodgson et al., 2001), HDC’s selection process implies a ‘double sentencing’, which endangers the rule of double jeopardy (Gibbs & King, 2003; Dodgson et al., 2000). Yet, EMHD’s ‘high integrity, zero tolerance’ (Nee, 1999:42) image fits the current crime control approach (Packer, 1968; White, 2002). Criminal justice practitioners, after their initial restraint, (Mann, 1998; Mortimer et al., 1999), view EMHD as overwhelmingly positive (Richardson, 1999; Nee, 1999; Walter, 2002; Mortimer, 2001 Walter et al., 2001) and as having considerable potential by providing clear evidence of compliance and offering a cost-effective alternative which makes sense to the general public (Walter, 2002).

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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’ ...

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