The Use of Electronic Monitoring in the Alaska Criminal Justice System: a Practical Yet Incomplete Alternative to Incarceration

• Jurisdiction: Alaska,United States
• Publication year: 2011
• Citation: Vol. 28

§ 28 Alaska L. Rev. 125. THE USE OF ELECTRONIC MONITORING IN THE ALASKA CRIMINAL JUSTICE SYSTEM: A PRACTICAL YET INCOMPLETE ALTERNATIVE TO INCARCERATION

Alaska Law Review
Volume 28, No. 1, June 2011
Cited: 28 Alaska L. Rev. 125

THE USE OF ELECTRONIC MONITORING IN THE ALASKA CRIMINAL JUSTICE SYSTEM: A PRACTICAL YET INCOMPLETE ALTERNATIVE TO INCARCERATION

Natasha Alladina ^[*]

Abstract

Alaska's prisons are full, but crime has not come to a standstill. The costs of incarceration continue to rise and so do the number of inmates. The State has found itself in the midst of an urgent dilemma - it must control the mounting costs of criminal justice yet ensure public safety. It must also ensure that criminals receive just punishment. And since packing prisons has proved an inadequate solution, it is time to search for effective alternatives. This Note proposes increasing the use of electronic monitoring as an alternative to incarceration. The current electronic monitoring program in Alaska has addressed budget concerns but has not met crime reduction goals. Thus, the Note proposes a "hybrid" electronic monitoring program - one that combines the current electronic monitoring program with other alternatives to incarceration, including therapeutic justice and halfway housing. This "hybrid" should maximize resources and minimize costs, helping to correct the prison-packing predicament of the Alaskan criminal justice system.

Introduction

With one of the fastest-growing prison populations in the United States, Alaska faces an urgent criminal justice dilemma of how to control costs while maintaining public safety. ^[1] Alaska spends $44,000 per inmate per year, and prisons are at full capacity. ^[2] In addition to curbing the rising costs of incarceration and the number of inmates, the state must simultaneously ensure public safety and effective use of tax dollars. ^[3] And, of course, offenders must receive punishments that appear just and serve retributive, deterrent, and rehabilitative or reintegrative goals. ^[4] Because increasing the prison population has failed to thwart the mounting crisis, ^[5] the use of alternatives to incarceration has become imperative. One such alternative is electronic monitoring.

The Electronic Monitoring (EM) program in Alaska, governed by sections 33.30.061(c) and 33.30.065 of the Alaska Statutes, ^[6] "allows inmates who meet certain requirements to serve time at home." ^[7] Eligible offenders apply to one of five Electronic Monitoring Offices, located in Anchorage, Fairbanks, Kenai, Ketchikan, and Sitka. ^[8] If approved, an offender pays a twelve or fourteen dollar fee per day plus ten dollars for a urinalysis test. ^[9] She may then serve her sentence from home, in accordance with specific terms and conditions. ^[10] Outwardly, Alaska's EM program, like several others across the country, appears to provide a cost-effective and viable alternative to incarceration. ^[11] However, successful use of EM has not yet been fully realized in the state. ^[12] This is due to several factors, including the newness of the technology, ^[13] but courts' confusion with how to apply credit from time served while on EM to sentencing has been particularly problematic. The Alaska Court of Appeals' holding in Matthew v. State ^[14] is a telling example.

In Matthew, the court applied its rule from an earlier case, Nygren v. State, ^[15] holding that petitioner's court-ordered condition of release - EM-did not amount to "restrictions approximating those experienced by one who is incarcerated." ^[16] The court further held that a petitioner subjected to pretrial conditions of release that are the same as those experienced by a sentenced individual should not automatically receive credit for time served. ^[17] Although the court affirmed the "restrictions approximating those experienced by one who is incarcerated" ^[18] standard set out in Nygren, the case as a whole demonstrates a continuing lack of clarity about the effective and efficient use of EM in the criminal context-especially with respect to its dissimilar use in the pretrial and sentencing contexts. Embedded in this uncertainty is the need to manage prisons and balance punitive goals with budget concerns. The current EM program in Alaska has addressed budget concerns, but has not met crime reduction goals. ^[19] At the same time, prisons are still overcrowded. ^[20] This Note attempts to put these various issues into perspective and proposes a possible solution that could successfully incorporate EM into the Alaskan criminal justice system both efficiently and effectively.

Part I discusses the nature of EM in the criminal justice system and focuses on the present use of it in the Alaskan correctional system. Part ii analyzes the state of the law concerning EM in Alaska. Part iii probes both the potential of and the controversy surrounding the use of EM as an alternative to incarceration through the lenses of efficiency and effectiveness. Part iv then proposes a practical approach to EM that merges its use with other alternatives to incarceration.

I. The Nature of Electronic Monitoring in the Criminal Justice System

A. What Is Electronic Monitoring?

1. Electronic Monitoring in General

EM is a tool that is often used in conjunction with house confinement or house arrest to monitor an offender's whereabouts and restrict his movements. ^[21] By using electronic devices that emit electronic signals, EM systems can track an offender's location and ensure compliance with the requirements of sentencing or supervised release. ^[22]

EM systems vary widely and include a range of options such as "home monitoring devices, wrist bracelets, ankle bracelets, field monitoring devices, alcohol testing devices, and voice verification systems." ^[23] In a typical EM program, offenders wear uniquely coded electronic transmitter devices. ^[24] This uniquely coded device sends a signal to a home monitoring device located in offenders' homes and communicates with a central computer (and monitoring specialists) located in a monitoring center via telephone line. ^[25] Because offenders must follow a regimented schedule and because their uniquely coded devices signal any deviations from that schedule, monitoring specialists are able to keep track of offenders' activities at all times. ^[26]

Electronic offender monitoring occurs either passively or actively. ^[27] Passive EM systems usually require an offender to speak to a case officer via telephone (e.g. voice verification system) or verify his presence by inserting an electronic transmitter, unique to him, into a home monitoring device. ^[28] These systems may also require an offender to breathe into a home breathalyzer device to determine his sobriety. ^[29] Active EM systems, on the other hand, have the advantage of constantly monitoring an offender's whereabouts and do not depend on the offender's cooperation. ^[30]

2. Economic, Practicability, and Eligibility Issues Surrounding the Use of Electronic Monitoring

With either the passive or active EM model, certain economic, practicability, and eligibility issues arise. First, EM programs require participating offenders to have access to homes with telephone land lines. ^[31] Since these are not available to all who may wish to participate, the requirement unfairly limits the pool of eligible offenders at the outset-discriminating against the poor and those who do not have homes or phones. ^[32] Consequently, "[a] challenge that the rich get tagged and the poor get prison might well have some substance." ^[33] But at the same time, EM is viewed as more economical than incarceration precisely because most offenders subjected to EM programming must cover the costs of that sanction. ^[34]

Second, the criminal justice process as a whole is not without an underlying profit motive. ^[35] EM programs resulted from privatization and eventually, public-private partnerships, ^[36] and the commercial pressures of the private sector may have led to overselling and unrealistically high expectations. ^[37] The powerful interest groups that form this sector may have framed EM as more advantageous than it actually was, ^[38] thereby contributing to "the unexpectedly slow development of electronic monitoring." ^[39]

Third, EM programs typically target low-risk offenders. ^[40] The term "low-risk" reflects both the actual offenses committed and the characteristics of the offenders, including first-time offenders, those who committed non-violent or property offenses, and those with structured living arrangements. ^[41] Moderate- to high-risk offenders may also be subjected to EM programming, but the EM used for these types of offenders consistently differs from that used for those who are considered to be lesser risks. ^[42] Specifically, "[in] low-risk populations, EM may be used by itself or in conjunction with other forms of low-contact monitoring. in moderate to high-risk populations, EM is more likely to be one part of a program that involves human contact and supervision, drug treatment, or other services." ^[43] Accordingly, for higher risk offenders, EM may prove to be a more rehabilitative and complete alternative to prison. Yet, because further research is necessary, this conclusion is, at best, a speculative one. For now, those most often selected for EM programming, whether passive or active, continue to be those who are low-risk offenders, or as some have argued, those...