I want to be absolutely clear. I am not advocating that we reduce prison populations just to save money. Nonviolent offenders are still law breakers, and they will break laws until they learn their lesson. What I am saying is that we need to do a better job teaching nonviolent offenders the right lessons. That takes more than prison; it takes more than slap-on-the-wrist-probation. Drug and alcohol addiction must be broken; discipline and job skills must be learned. When that can be done better, outside of expensive prison walls, that is what we should do. Results matter, public safety matters, taxpayer dollars matter, saving lives and restoring families matter.
Chief Justice William Ray Price, Jr., Supreme Court of Missouri State of the Judiciary Address, February 9, 2011 (1)
Prison populations in the last decade have increased steadily across the country, with prison facilities running at, or well over, capacity. (2) This trend is not only costly to taxpayers, but it is doing little to curb crime and recidivism rates, which have remained steady throughout the same time period. (3) A greater effort is needed to reduce recidivism and provide resources to nonviolent offenders, which will aid in their process of reintegration. (4) The use of modern technologies--such as the use of electronic monitoring--paired with early sentencing measures are a step in the right direction. (5) The use of these technologies provides a cost effective alternative to incarceration and better serves the needs of many nonviolent offenders who are currently incarcerated. (6) Massachusetts currently has the technology and infrastructure in place to make use of these advantages, but sentencing guidelines have made implementation difficult, or almost impossible, to utilize. (7)
The Massachusetts Electronic Monitoring Program ("ELMO") is responsible for the oversight and monitoring of 2,000 offenders on probation or parole throughout the Commonwealth. (8) As electronic monitoring has expanded and become more technologically advanced over the past decade, the need to greater utilize the ELMO Program as a viable alternative to incarceration has also expanded. (9) Massachusetts has taken small steps towards meeting this need by expanding the program to include the use of global positioning systems ("GPS"). (10) With the infrastructure and technology already in place, Massachusetts has the ability to move the program beyond its current use--a punishment device--to a more useful tool that is able to punish as well as rehabilitate and reintegration offenders, beginning in the early stages of sentencing. (11)
This Note advocates for the expanded use of the ELMO Program in Massachusetts as a useful tool that will aid in the sentencing and rehabilitation process of non-violent offenders. (12) Part II describes the varying types of monitoring equipment available to the Massachusetts court system and illustrates the manner in which the equipment functions. (13) Part III examines the jurisprudence and legislation that has established the appropriate use of electronic monitoring in Massachusetts, which has formed the Commonwealth's current ELMO program. (14) Part IV compares the use of electronic monitoring in Massachusetts with other jurisdictions and evaluates the advantages within the respective programs. (15) Part V concludes and advocates for an expanded use of ELMO in Massachusetts, where considerations for electronic monitoring occurs during the sentencing phase as an option or as an addition to the offender's sentence. (16)
FACTS: ELECTRONIC MONITORING EQUIPMENT
Massachusetts state courts currently utilize different levels and variations of monitoring devices to control and locate offenders throughout the Commonwealth. (17) Depending on the nature of the crime committed, state trial courts may order that an offender be monitored by the Massachusetts Probation Department and confined to his or her home by electronic monitoring. (18) The nature and level of the crime will also determine what type of equipment will be used to monitor the offender. (19) Detailed below are the various monitoring devices used by Massachusetts's courts as part of the ELMO Program. (20)
Traditionally used with offenders who pose the lowest risk to society, voice verification uses voice-coding technology to recognize an individual's unique voice patterns over a landline telephone. (21) The process is cost-effective and requires no additional equipment to be placed in the offender's home. (22) An automated call system will randomly call an offender during a twenty-four hour period and will require the individual to repeat commands so that his or her voice may be identified. (23) If the offender fails to answer the phone call or the voice pattern does not identically match the offender's file, he or she will be found in violation of probation. (24)
Radio Frequency ("RF") is the simplest form of monitoring and records when an offender enters or leaves his or her home. (25) In RF monitoring, a small, lightweight, battery operated bracelet is fastened to the offender's ankle and sends or receives radio frequency signals to and from a home monitoring unit centrally located inside the offender's home. (26) The home monitoring unit is attached to a phone line and a power source and records the exact date and time of when the offender enters and leaves his or her home. (27) The home monitoring unit will then automatically place a call into a centralized computer system, which notifies authorities of any violations. (28) A violation occurs if the offender attempts to remove or tamper with the bracelet or is not at home at the specified time period set forth by the probation department. (29)
Global Positioning Systems
Global Positioning Systems ("GPS") technology, the most advanced form of monitoring, allows a probation department to actively track thousands of offenders per year. (30) Real-time data of the offender's location is sent to authorities from a GPS bracelet that is fastened to the offender's ankle with a tamper resistant bracelet. (31) Contained within the GPS unit is cellular technology that calls into a computer system and provides the probation office with the offender's information. (32) While RF only tracks when an offender is inside his or her home, GPS allows authorities to track the exact position of the offender worldwide. (33) Because this technology is so accurate, authorities are able to limit where an offender can travel through the use of "exclusion zones" and "inclusion zones." (34)
For offenders who have a previous history of alcohol related offenses, the Commonwealth has the ability to use electronic monitoring combined with random in-home alcohol testing during the entire length of probation. (35) The Commonwealth may use one of two options: first, the Probation Department may pair the use of RF with an in-home breathalyzer unit that will require the offender to blow into a machine at random throughout the day and will test for alcohol on the offender's breath; or second, the offender will wear an ankle bracelet that combines the previously discussed RF technology with technology that continuously reads alcohol levels from the perspiration on the offender's leg. (36) If any level of alcohol is detected, either option will immediately notify authorities of violations through computer software. (37)
EVOLUTION OF ELECTRONIC MONITORING
Although the concept of electronic monitoring has been studied for more than forty years, it was not until the mid-1980s that its use gained notoriety in law enforcement and began to spread across the country. (38) Massachusetts established its monitoring program in 2001 as an alternative to incarceration and to provide an added layer of supervision to non-violent probationers and parolees. (39) After a decade of growth, monitoring equipment is now available in every probation office across the state. (40) Just as monitoring equipment has developed over time, so has the jurisprudence regarding the use and application of monitoring devices in the Commonwealth. (41) Applied as an alternative to incarceration, the Massachusetts Supreme Judicial Court ("SJC") was forced to interpret the applicable legislation and set forth monitoring and confinement limitations in their sentencing and parole guidelines. (42)
In Commonwealth v. Morasse, (43) the SJC was faced with the question of whether confinement to one's home could be applied as credit for time served once sentencing took place. (44) The court held that the term "confinement" does not pertain to being confined to one's home and refused to correct mittimus for the defendant who had spent nearly three years on electronic home monitoring awaiting trial. (45) The defendant argued that chapter 279, section 33A of the Massachusetts General Laws provides that credit shall be given for time spent held in confinement and that being confined to one's home is within the meaning of the law. (46) The court, noting other jurisdictions, disagreed and interpreted the meaning of "confinement" to "refer solely to confinement in a jail, prison, or other comparably restrictive institutional setting." (emphasis added). (47) The court further reasoned that there was no electronic monitoring program at the time section 33A was enacted; therefore, it was not the intent of the legislature to include such a "far less restrictive" means of confinement within the statute. (48)
Two years after the Morasse ruling, the SJC in Commonwealth v. Donohue (49) upheld the actions of the Middlesex County Sherriff's Office releasing an inmate to the "confines of [his] home with a GPS monitoring bracelet" before the committed portion of his sentence was served. (50) The court reasoned that serving the remaining committed portion of a sentence in the GPS program was authorized by statute. (51) Furthermore, the...