General considerations regarding electronic monitoring services and programs
| Author | Ovidiu Predescu - Dumitru Marin |
| Pages | 1-26 |
1
GENERAL CONSIDERATIONS REGARDING
ELECTRONIC MONITORING SERVICES AND PROGRAMS
1)
Dumitru Marin, PhD
Ovidiu Predescu
2)
Abstract
In this study the author presents the main characteristics of the services and
programs of electronic monitoring of culprits and convicts, at the same time
revealing both the strong points and the shortcomings thereof, found in the
implementation process.
Furthermore, the author pleads for the organization of a serious debate at
national level on the necessity and timeliness of implementing such services and
programs in Romania, in the context of the present criminal reform.
Keywords: electronic monitoring; curfew; house arrest; electronic
monitoring system; probation; consent; monitoring; labeling; legal supervision;
imprisonment; parole; preventive detention; alternative preventive measures
Introduction
In the context of the increase of the imprisoned population and as the prisons
become overcrowded, the legal practice brings into debate innovating ideas and
methods of delinquency management. The offender electronic monitoring services
and programs are a result of this reasoning.
Electronic monitoring of offenders caught the attention of specialists over 30
years ago. Developed on the concept that less grave offences can be served
outside the prison system, electronic monitoring became an instrument in the hand
of the courts, probation and monitoring services and other offender management
responsible entities.
The concept of electronic monitoring is based on the capacity of the probation
officers, policemen and/or parole management officers to manage and control the
activities of an offender in the community as a consequence of the offender’s
inclusion into an alternative program to preventive detention or imprisonment.
There are several worries regarding the implementation of electronic
monitoring services and programs. One of them refers to the fact that the
extension of the eligibility to offenders with a significant social risk can change
into an attack to public security. On the contrary, restriction of the services to
subjects who perpetrated relatively minor offenses and having an adequate social-
1)
Article translated from the Romanian language. It was published in “Dreptul” Magazine nr. 4/2011.
2)
PhD, Univ. Professor; Honorific member of “Andrei Radulescu”; Legal Research Institute
of the Romanian Academy.
2
professional profile does not justify itself economically and electronic monitoring
may be considered an intrusion in the private life of the person and his/her family.
The wager custody versus alternative restrictions and obligations with
electronic monitoring consists in identifying the eligibility criteria of the offense
and offender, capable to suggest and sustain the decision of imprisonment,
application of alternative measures or penalties in the community, respectively,
supplemented as the case may be, by the obligation of implementing other legal
control, treatment, education of professional training programs.
Prison overcrowding is a frequent argument used to justify electronic
monitoring services, but not the only one. To sustain control programs and
services by electronic system, appeal is made yet to other supporting themes, such
as the responsibility of the individual, family and society, freezing of the
recurrence rate, and not last, the cost of custody management. In a wide
acceptation, electronic monitoring of culprits and convicts contributes to the
materialization of community partnerships which aim at, and maintain the hope
of, a just, real and secure society, by the integration of a balance between political,
legal and social actions of criminality prevention, operative and efficient
intervention and reintegration of the individual in the community
3)
.
The content and complexity of the services belonging to the electronic
monitoring program differ according to the nature of the offence, profile of the
offender and budget allotted to that action.
Extension of the use of these categories of services and programs at
international level brought to light a series of non-homogeneous particularities of
political, social, administrative and ethical nature, issues which should be solved
before the initiation of the said actions or implementation of a new normative
framework. It is also the case of Romania.
Imminence of the implementation of the new criminal normative framework
4)
rises, in our opinion, to the rank of priority, the provocation of a debate on the
theme of the necessity and timelines of implementing the electronic monitoring
services in Romania. What is it? What are the characteristics which define the
notion of electronic monitoring? And, moreover, what has to be done in the
direction of implementing such services and programs in the legal act are a few of
the issues we propose to present and, as far as possible, clarify.
3)
American Probation and Parole Association: Electronic monitoring in intensive probation
and parole programs (Monograph). W ashington, DC: Bureau of Justice Assistance, U.S.
Department of Justice, 1989.
4)
See: Law no. 2 86/2009 on the Criminal Code, published in the Official Monitor of
Romania, pa rt I, no. 510 of July 24, 2009; Law no. 135/2010 on the Crimina l Procedure Code,
published in the Official Monitor of Romania, part I, no. 486 of Jul y 15,2010.
3
1. Electronic monitoring – a complex and controversial notion
Complex because it brings together heterogeneous activities from various
spheres: criminal justice, economy, technical research, psychology, sociology,
pedagogy, administration etc. Controversial because it brings into debate and offers
different answers on themes related to criminal legislation, fundamental human
rights, criminality control, protection, security and social reintegration, costs and
efficiency of the justice act. From the procedure point of view, it represents a means
of remote control of the persons involved in a criminal suit, by the imposition of
movement restrictions, practicable as a rule in a certain hourly bracket.
It is promoted as a real alternative to imprisonment. The electronic monitoring
services and programs are less costly than the imprisonment; they cut down the
need for detention spaces and contribute to the relaxation of overcrowding the
reviewed locations.
Although it is sometimes perceived as a form of punishment which restricts
the freedom of movement, it provides the required flexibility to continue current
activities in the community and maintain the family life.
The electronic monitoring programs protect the public by inhibition of the
criminal possibilities; they emphasize the impact of social actions of reintegration
and rehabilitation of the criminals and represent a solid support for the
enforcement of punishment in the community.
At social and individual levels, the electronic monitoring services contribute
to the control and normalization of the life style of the subjects and, in many
instances, of those in their entourage, as well as the consolidation of a healthy
relational system.
Electronic monitoring, as an efficient way of monitoring the freedom of
movement of the offenders in the community, can be applied in all stages of the
criminal suite and, in certain cases, after having served the time, for instance in
the case of sexual offenders.
Furthermore, it is assimilated ever more as a viable alternative option to the
imprisonment of persons with a moderate social threat and as an efficient
possibility of solving aspects generated by illegal immigration or deviant social
behavior of young people. According to individual impact, electronic monitoring
is considered to be more punitive than the classical probation services and less
strict than imprisonment.
The existence and development of a monitoring system ease promotion of
modern policies of criminal procedure and time serving and provide the adequate
technical support for the increase of the weight of preventive obligations, non-
privative of freedom, as opposed to preventive detention and punishment executed
in the community as opposed to imprisonment.
Substitution of the classical alternatives of punishment prevention and time-
serving by electronic monitoring is conditioned by the guaranteeing of an efficient
justice act, with reduced costs, under conditions of individual and public security.
4
2. Electronic monitoring – weakness, mercy or controlled trust.
The offender electronic monitoring institution is found under multiple
acceptations.
Some people perceive it as a punishment measure or an act of mercy,
consciousness and responsibility. Others perceive it as a complementary and
efficient means of control and real substitute of custody. Some opinions support the
thesis of controlled trust and the necessity to grant a second chance, while others
support the alternative of using it as an instrument of alleviating disordered life.
There are opinions which promote the idea of using it as a weapon against the
shortcomings and negative emotional impact of the life in jail, especially on
young people and a complement supporting the cognitive-behavioral treatment of
actions in the case of adults.
There are opinions which disapprove the use of such means, while others
declare themselves surprised by their cleverness and efficiency.
Some jurisdictions enforce or experiment electronic monitoring as a solution
of efficient management of budgetary resources, while others aim at reducing the
recurrence index amplifying the role of the family, social counseling and
professional formation of the subjects in the community.
Other programs of electronic control have a strictly operative character, the
declared targets being focused on the seeking, localization, apprehension and
presentation of the offenders in front of the investigation and/or judicial organisms.
International expertise connects the notion of electronic monitoring with two
fundamental coordinates:
efficient riposte – from the economic and social points of view – to imprison-
ment; budgetary constraints consolidate the thesis according to which addition and
modernization of imprisonment capacities are not the only paths to follow;
mode of control of criminality based on the responsibility of the subjects
and community; usage imposes implementation of a dual system of treatment of
the delinquency: imprisonment for the cases which need it and harsh penalties
and/or restrictions in the community for those which do not require express
custody.
3. Curfew – essence of the electronic monitoring system
The contents of the electronic monitoring program express a form of remote
control of persons involved in a criminal suite, selected according to some precise
eligibility criteria, through several verification modalities of the restrictions of
leaving the residence within a certain time span (radio frequency or biometric
systems) or permanent recording of the movements inside the community
5)
.
The electronic monitoring program focused on curfew departs evidently from
the strictly operative approaches.
5)
Provided by satellite localization systems with Global Positioning System (GPS) technology.
5
Electronic surveillance, currently met in the specialized literature under the
name of electronic monitoring, is a relatively recently approved in judicial
practice. In fact, electronic monitoring services are aimed at recording and
certifying the conformity of observing the obligations imposed by the curfew.
The decision for confinement, arrest or curfew places the subjects in a
program of control in the community which restricts the freedom of movement
and institutes at individual level the obligation to refrain from leaving the declared
residence during a certain time bracket.
In principle, the sum of restrictions imposed by the program does not restrict
the right to work, education of medical treatment.
The considerations presented above induce two essential issues in the
administration of a service of electronic monitoring, i.e.: legislative permissivity
and institutional capacity to furnish and manage such special services.
4. The mission of electronic monitoring programs and services remains a
philosophy durable in time
The history of electronic monitoring begins in the 60’ of the 20th century and
is the effect of a non-homogenous mixture of values, requirements and conditions
favorable for political, economic, ideological and technical changes, all focused
and turned into account by various social forces, interests and processes to the
benefit of community standard development
6)
.
The father of the concept of monitoring the offenders by technical means is
considered to be Ralph K. Schwitzgebel, PhD, a psychologist at Harvard
University. He sustained that acceptance of certain measures of judicial control
and social re-education of the offenders in the community is preferable in the
present stage of human development and a more permissible, more tolerant and
less costly alternative than custody of the persons imposes itself as necessary and
timely solution. Dr. Schwitzgebel considered that monitoring by technical means,
associated with other judicial control measures, could be a substitute of long term
imprisonment, especially in the case of a category of chronical recidivists.
Offender’s responsuibility is considered an esential condition while the technical
equipment, a servant and therapeutic process
7)
.
The huge qualitative leap recorded in the field of electronic technique did not
affect Dr. Schwitzgebel’s phylosophy, recognized even today. In spite of
continuous improvement of the technical performances and miniaturization of the
devices attachable to persons, electronic monitoring preserved it’s raison d’aitre:
6)
See: S. Mainprize, Electronic monitoring in corrections: Assessing cost -effectiveness and
the potential for widening the net of social control, Canadian Journal of Criminology, 34(2), p.
161-180, (1992).
7)
M. Renzema, Electronic Monitoring’s Impact on Reoffending, (revised) 2003.
faculty.kutztown.edu/renzema/EM/april 05/2003 protocol.pdf, p.2.
6
confirmation of the presence of a subject at a certain location at a given time or
during a certain time bracket.
Initiation of electronic monitoring programs, in the sense of the motivations
expressed by Dr. Schwitzgebel, is attributed to judge Jack Love of Albuquerque,
New Mexico. Inspired by an episode of the Spiderman comics series, in 1977 he
convinced Michael Gross, an electronics specialist, to design and build an
electronic device for the control of offenders. The experiment started in 1983,
when judge Jack
Love decided to include the first offender into an electronic monitoring
program, pronouncing a measure of curfew.
The success of the project laid the basis of development of a public service
destined to alleviate the act of managing criminality, to depressurize the effects
generated by jail overcrowding, re-socialization and reintegration of offenders
with moderate social risk.
The electronic monitoring programs experienced a significant development and
spread at the level of the United States of America and, then, the whole world From
2300 subjects registered in 1988 in 32 states of the United States of America, their
number reached 95,000, ten years later
8)
. Remarkable results made it possible for
the American experience to be exported to Great Britain, Canada, Australia, New
Zealand, Singapore, South Africa, Sweden and Holland. There, as a consequence of
undergoing some pilot projects with various degrees of complexity, operational
structures were built, managed by both the public and the private sectors
9)
.
The constitution and development of the monitoring services are to a great
extent the consequence of the will of political factors, which, under the pressure
exercised by certain social and economic vectors, ascertained the real contribution
of the electronic monitoring programs to rendering the justice act more flexible
and efficient.
The appearance and development of satellite positioning equipment allowed
the enriching of the contents of the programs and enlargement of the monitoring
area by furnishing a permanent control over the subjects’ movements.
The increase of the freedom of movement of the offenders, a facility provided
by the implementation of programs based on GPS devices, fuels certain worries
with regard to potential perils determined by the global behavior of the individual
in the society.
These worries are fully justified. The guarantee of permanent and operative control
may lead to an attenuation of the vigilance and, why not, of the reticence of the decision
factors with regard to the extension of such programs to deeds and individuals with a
higher social danger, a result which could deteriorate the social climate.
8)
A. Schmidt, Monitorizarea electronică: Ce ne spune literatura de specialitate? în
“ProbaŃiunea Federală”, 62 (2), 1998, p. 10-19.
9)
K. Dodgson, E. Mortimer, Home detention curfew - Th e first year of operation, in
„Research Findings”, 2000, p. 110.
7
5. The concept of electronic monitoring triggers important debates of
legal and ethical nature
The themes brought into debate are connected to the artificial expansion of
the legal and social control in the community, the danger of attenuating the role of
the punishment in the act of criminal justice, the risk of breaking into certain
individual and/or collective rights and the constitution or imposition of certain
discriminatory selection criteria.
5.1. Electronic monitoring “extends the net”
10)
. This idea is based on the fact
that the first ones targeted are the offenders with insignificant social risk, who, as
a rule, are tried in freedom or are placed in routine traditional probation programs.
Enforcement of the programs on these categories of persons represents, after all,
an arbitrary escalation of the legal control in the society, under the pretext of a
minimum charge of criminality. The manifestation of such situations places under
the incertitude sign the veracity of the economic advantages aired in the support
of monitoring services.
5.2. Electronic monitoring eases the coercitive effect of the punishment. The
oponents say that electronic monitoring is a much to lenient decision. In their
opinion, substitution of imprisonment leats to the diminution of the discuraging
role of punishment, propagation of the negative effects derived from here. It is
also affirmed that the electronic monitoring programs do not have the capacity
and mission eliminate the repetition. The arguments presented above are partly
shadowed by the results obtained by the monitoring services which record
conformity rates of up to 95 percent. The risk of repetition exists and must not be
minimized. An efficient monitoring solution is based on solid selection criteria
and takes into consideration, in the case of complex situations, the alternative of
monitoring the offenders by the electronic system, at the same time with the
permanent or occasional implementation of a specialized human control.
5.3. Legality of the electronic monitoring decision. Enforcement of an
electronic monitoring program creates controversies over issues of constitutional
law. Installation of technical control equipment in the residence of the person
places under a cone of shadow the right of the individual to privacy. Integration of
the notion of monitoring in the category of criminal investigation instruments,
aimed at finding, locating, apprehending and bringing the offenders to justice,
triggered disputes with regard to the protection of the individual against abusive
search and impounding. The existence of a selection system with inflexible
10)
National Institute of Correction, Design ing an Electronic Monitoring Program: A Guide to
Program Design, Implementation, and Management, “The Exper ience of Clackamas County”,
Oregon/2006, p.10, http://nicic.gov/pubs/pre/008745.pdf.
8
eligibility criteria, raises serious barriers against the admission of all categories of
criminal deeds and offenders, fact which contributes to the strengthening of the
suspicions related to the observation of the equal protection of the individuals in
front of the law.
Under such conditions, the solution is to obtain the consent of the person for the
technical and legal decisions foreseen to be made, a requirement which becomes a
determining element of the program. In other words, electronic monitoring has
legal coverage as long as it imposes itself as a consensual approach.
5.4. Electronic monitoring interpreted as a discriminatory facility. Deviation
from the principle of equality in rights derives from the mode of designing and
building the system of eligibility requirements, and, implicitly, from the pypology
of adopted programs.
Selection of the subjects acording to race, social standing, age criteria or other
norms springing from the nature of the offenses and the profile of the offender
places under discusion the mode of observing the fundamental rights regarding
the equality of the individuals in front of the law.
Collection of a fee from the beneficiary limits the access of yound people and
persons with reduced resources. The obligations to have a stable residence, a
secure place of work and a land phone line can amplify the issue of discriminatory
criteria. Wherever a material incentive of the subjects is pursued, it is
recommended to use flexible scales of fees, coresponding to the financial
possibilities of each individual.
Orientation of the programs exclusively in the direction of the offenders with
moderate social risk and without priors, or of minors and youth consolidates the
baggage of arguments supporting the discrimination thesis. Guiding the eligibility
process towards such criteria restricts the area of selection and produces a
narrowing of target group to a segment of persons coming from the median area
of the social risk or with a non-violent behavior, an approach in obvious
contradiction with the mission of the electronic monitoring services, the rights and
aspirations of the rest of the offending population.
5.5. Electronic monitoring does not bring social rehabilitation. The electronic
monitoring program is focused on the diminution and control of the subject’s
freedom of movement. Fulfillment of the movement restrictions does not
contribute to the improvement of the social contacts and, as such, the reintegration
effect may be annihilated. This is one of the reasons for which recommendations
flow in the direction of completing the electronic monitoring programs with
actions of social contacts, education and professional training. This way, the
subject has the possibility to access groups of social services and superior
quantitative and qualitative traditional probation activities.
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The socialization potential of any reintegration program is assessed by
comparing the contributions of the three options: probation, electronic monitoring
and imprisonment. Electronic monitoring, through flexibility and making aware of
the responsibilities, offers the highest chances.
6. Preventive detention – new aspects
Use of the electronic monitoring services in the preliminary stage of the trial
act became a common practice at the level of many international jurisdictions.
The discussions around the use of electronic monitoring as an alternative to
preventive detention do not exceed the general framework of the issues and are
oriented towards the clarification of the aspects related to the legality and contents
of the proceedings, the level of the social risk attributed to offenses, the profile of
the eligible offender, the impact on social security, the agreement between the
requirements of the act of justice and technologic answers, the observation of the
fundamental human rights etc. The weight is held by normative permisiveness and
technologic monitoring performances.
The measure of preventive detention can be ordered when there is evidence or
serious indications that a deed provided for in the criminal law was perpetrated
(art. 143 C, criminal procedure). The instances in which there exists the danger of
evasion, influencing of the criminal investigation or perpetration of other offenses
are recognized as general circumstances to order detention. In the case of serious
offenses it is stipulated a special reason for preventive detention, existence of a
concrete risk for the public order, respectively. As an absolute novelty, the new
Criminal Procedure Code institutes the measure of house arrest (art. 218-222).
At the principle level, custody of the person receives the character of exception,
subsidiary in relation to the other preventive measures non-privative of freedom.
In order to guarante and preserve the character eminently preventive of the
custody pronounced in a criminal trial and in order to fluidize the act of justice, the
new Criminal Procedure Code provides for the measure of preventive detention
maximum terms for the periods of emforcement of the measure, according to the trial
stages. In this context, preventive detention acquires new characteristics as compared
to the other preventive measures.
In the preliminary stages of the trial act, it is required that the enforcement of
electronic monitoring programs is not linked with the instances which exceed the
requirements regarding the presentation of the offender to the criminal
investigation organisms or the courts and not perpetrate other offenses. The
penalty is not relevant at this stage of the criminal trial.
International practice brings to the fore other two reference fields attributed to
the investigation stages. The first refers to the monitoring of asylum applicants by
right, while their applications are under way of verification and solution. In this
interval, in the majority of jurisdictions, the asylum applicants are held in custody,
in specially arranged places, with severe restrictions of movement inside the
10
community. Inclusion of this category of persons in monitoring programs with
fixed devices or voice verification means may be a more humane solution and, at
the same time, cheaper and more efficient.
The second refers to victim protection. The programs of victim protection
have a relative reduced enforceability in the stages of criminal investigation and
trial, but enjoy an ascendant evolution in stages like post-sentencing, parole, or
after having served time. It is the case of sexual aggressors, obliged in certain
jurisdictions to wear various positioning devices for the duration of their lives
11)
.
Re-dimensioning of the preventive detention institution, as a rule in
procedural exception, brings again to the fore the theme of culprits monitoring by
electronic system and imposes it as an adequate means of legal control.
7. Legislatively permisive and functionally efficient framework –
fundamental condition to build a new system of electronic monitoring
The notion of monitoring by electronic system is not an innovation in the
Romanian criminal legislation. Implementation of such a service was attempted
by adoption of the Government Emergency Ordinance no. 60/2006 for the
modification and supplementation of the Criminal Procedure Code as well as the
modification of other laws
12)
.
In order to solve the issues related to the finding, positioning, apprehension
and bringing the offenders in front of the judicial organisms and to provide a
legislative framework facilitating the efficient operation of the activities of pursuit
and trial, the Government Emergency Ordinance no. 60/2006 brought
clarifications with regard to the instances in which the judicial organism may
order the obligation of permanent wear of an electronic monitoring device.
Insufficiently detailed and sustained documentarily, as well as in the absence of a
specialized functional structure, the provisions could not be enforced.
Although not as a whole, the new legislative framework
13)
institutes norms
adequate for the use of monitoring and investigation, capable to satisfy the
requirements of accessibility, foresight and proportionality and, to a great extent,
to preserve the principle of observing the right to private life. For instance, when
the preventive measure of judicial control is ordered (art. 215, paragraph 2, letter
c, the new Criminal Procedure Code) and judicial control on bail (art. 217,
11)
See: Jessica’s Law. T he law is named after Jessica Lunsford, a young lady of Florida, who
was raped and killed in February 2005 by John Couey, a sexual offe nder, with priors. The
profound indi gnation o f the public opinion forced the officials of Florida to adopt this law. The
text of this law provides for a prison penalty of minimum 2 5 years and electronic monitoring for
the rest of the li fe, in the case of victims under 12 years of age. In Florida, sexual violence or rape
of a child are liable to life imprisonment without the possibility of revision for 1 2 years
(www.projectsafekids. com).
12)
Published in the Official Monitor of Romania, part I, no. 764 of September 7, 2006.
13)
See footnote #2.
11
paragraph 3, the new Criminal Procedure Code), the prosecutor, by ordinance, the
judge of rights and liberties, the preliminary session judge or the court, by closure,
may order that the offender against which one of these preventive measures was
taken must wear permanently an electronic monitoring system. At the same time,
according to art. 221, paragraph 3, the new Criminal Procedure Code, the judge of
rights and liberties, the preliminary session judge or the court may order, by
motivated closure, that during the house arrest, the offender must wear
permanently an electronic monitoring system. Also, in the case of parole,
monitoring of the observation by the offender of the obligations provided in art.
101, paragraph 2, letters d and e, the new Criminal Procedure Code, may be
achieved by an electronic monitoring system, under the conditions provided by
the special law (see art. 102, paragraph 3, the new Criminal Procedure Code).
Ordering monitoring measures by an electronic system is conditioned in the
first instance by the existence of reasonable suspicions regarding the perpetration
of an offense and the obligation to observe the principles of subsidiarity and
proportionality and, in the second instance, by the aviodance of enforcing
excesively the measure of preventive detention. It is required of the order of
imposition to take into account the necessity to ensure and preserve the
fundamental rights, the loss of liberties coming to be ordered gradually,
accorrding to the gravity and the social danger of the offense, the particularities of
the case and the social-profesional and profile of the perpetrator.
The place, role and importance of the electronic monitoring services in the
area of preventive measures must be thoroughly limited and accepted at the level
of all public institutions which are located on the flux of the penal justice act.
Absence of the general consensus may lead to the appearance of some obstacles of
legislative, logistic and operational nature.
8. Inclusion into an electronic monitoring program must not be a more
burdening measure than those currently enforced
The investigations regarding the necessity and timeliness of the electronic
monitoring services and programs in the area of preventive measures and parole
take into account at least three elements: the operational objectives, technology and
procedures. The process continues with the identification, assessment and setting of
the eligibility criteria for the subjects, as well as the instances which require
objectively the electronic monitoring. The enforcement of electronic monitoring
services and programs must be postponed until all required clarifications are
obtained and all asperities inherent to any beginning are eliminated.
The target of any assessment study focuses on the quantification of positive
influences generated by electronic monitoring in the field of preventive measures,
parole or insuring restrictions. As a rule, the results outline the thesis “electronic
monitoring complement of the alternatives to preventive detention”,
12
counterbalanced by the sentiments of worry with regard to the “new attempt of
imprison the society”
14)
.
The difference of opinion coagulates around two specific fundaments:
implementation of the electronic monitoring services and programs must not alter
the act of justice, nor to lead to the extension of the criminal field.
The enlargement of the area of enforceability is regarded in the context that
no person must be subjected to extra restrictive measures tougher than the ones
ordered before this control usage is adhered to. Contrarily, the electronic
monitoring programs and services take the aspect of an act of mercy and making
aware of responsibilities, are either assessed as a weakness of the system or an
unjustified addition of the criminal justice sentences.
Irrespective of the position of the analysts, in the general sense, electronic
monitoring is an additional legal and technical means which gives security and
strictness.
The contents of the programs enforced in the preliminary stages of the trial act
(back door) are limited to operative actions specific to the restriction or house
arrest and as compared to the structure of the back door services
15)
, they do not
include compulsory activities of socialization and social-professional treatment.
Parole offers a useful circumstance for the standardization of the operational
framework and carrying out preliminary assessments. The penalty, mode of
execution, achievement of educational and recovery objectives pursued by the
punishment are not basic elements in the stage of criminal investigation. As such,
monitoring is simplified, individualized and reduced strictly to reporting the
conformity of the restriction or house arrest. Consequently, the aim of the
monitoring in the case of parole consists of taking the measures required to
prevent evasion of the offender or defendant from criminal prosecution, trial or
time serving and, as far as possible, to prevent perpetration of new offenses,
providing security to the victims and/or rendering of services required by the
behavior and/or socials-professional profile of the subjects with special needs
16)
.
What is the safety margin of the electronic monitoring services? Difficult to
say. The substance of such programs differs from offense to offense, offender to
offender, decision maker to decision maker. Irrespective of the structure and aim
of the control decision, electronic monitoring must remain neutral in the relation
14)
P. Hassett, The Use of Electron ic Monitoring for Pretrial Release 5th BILETA Conference
British and Irish Legal Technology Association, 03/04/2005, http: // www . bileta.ac.uk/.
15)
Back door is an expression which brings together the stages of the criminal process after
the trial act and refers to the time serving, parole stage and social reintegratio n, as the case may be.
16)
Usually protectio n of the public is focused on the limitation of the possibilities of the
defendants to manifest a criminal behavior circumscribed to the accusation by restrictin g the
freedom of movement awaiting the solution of the case. The special needs form the subject of
complex monitoring programs which include activities oriented towards the maintenance and
alleviation of family relations, training in order to ob tain or preserve a place of work, solution of
the problems of physical or mental health, dependence of psycho-acti ve substances.
13
with the act of justice, reason for which it is recommended to avoid systems
which determine the enlargement or limitation of the areas of enforceability of the
preventive measures.
9. Technology is influenced by the scope, contents of the electronic
monitoring plan and modes of rendering it operational
Electronic monitoring equipment must remain neutral in relation with the act of
justice, reason for which it is recommended to avoid systems which determine the
enlargement or limitation of the areas of enforceability of the preventive measures.
Technical monitoring systems enjoy a good reputation. There is the almost
general perception with regard to the capacity of identifying the location of the
subject irrespective of the area of movement and environmental conditions.
Present technology has the possibility to cover these exigencies. But the
monitoring services and programs in current use have much more modest
characteristics, corresponding to the requirements of restriction or house arrest.
The systems are based on maintaining the subject inside the range of a
receiver/ sender which communicates conformity reports to a central computer via
telephone lines.
The data sent to the central server certify the presence of the wearer in a
certain time bracket in the range of action of the receiver or telephone. In contrary
instances, the computer registers a breach of the requirements and alerts the
proper authorities in charge of the intervention or probation.
The errors of technical nature represent a significant weight in the structure of
the non-conformity reports. These are blamed to a great extent on the improper
fidelity and reliability of the equipment. Frequently there are recorded dead points
or closed areas where the communication between the attached device and
receiver is broken. Some devices were easily detached without being signaled any
breaches of the program, while others could be deactivated, usually by extremely
simple methods. Many dysfunctions currently signaled in the pioneer stage were
remedied. Present day technology ensures a good operation and a remarkable
reliability. In spite of all this, the equipment continues to be a source of worry and
recommends itself to be a risk factor.
The operational procedures and the quality of the renderer are equally
important. The organization and administrative rules differentiate sensibly in
comparison with the clarity of the legislative framework, pursued targets, deed
perpetrated, trust of the decision-making factor in the use of monitoring programs
assisted technically, social status, behavior and professional profile of that subject
and do not differ significantly according to the stage of the criminal process.
The monitoring authority is a government entity. It fulfills the specific
responsibilities assigned to it with its own personnel or by partial or total
outsourcing of the monitoring services, either towards public institutions –
probation services or police departments – or private companies.
14
Lately the provision of monitoring services is achieved by concluding public-
private partnerships. International expertise brings to light consistent differences
in experience and training between the operational forces mentioned above. The
quantitative and qualitative differences influence the efficiency of the services
rendered, existing perceivable asperities in the capacity to act and react efficiently
in the case of non-conformity reports.
A special investigation requires outsourcing of the monitoring services towards
private companies, especially related to the authorization of the personnel for
rendering monitoring services and legalization of the access to the residences to
install/dismantle the devices, signaling of the program breaches and technical break-
downs or every time a routine verification of the equipment or individual is required.
The opponents consider the competences attributed to the private personnel equal or
bigger than those granted a public servant, without having the limits and rigors of the
abuse of force which is exercised at the level of public authorities.
Other controversies are connected with the reason of being of the private
renderer: the profile. They are motivated by the fact that the preoccupations for
profit may generate conflicts of interests to the detriment of the rendering or public
service. There are opinions which propagate the worry that the private renderer
would apply pressure on the enforcement of the act of justice by influencing the
eligibility criteria, in the sense of enlarging the area of applicability of the services
and on the persons which do not require such a treatment or will seek to obstruct
public control and monitoring of the state authorities over the renderings for the
reason of defending the private commercial right
17)
.
The considerations presented above have a solid theoretic support. In practice,
the private renderer has the competences limited to the responsibility assumed by
contract, its preoccupations being oriented towards the quality of the services and
elimination of the vicissitudes of technical or procedural nature. The public
authority exercises a permanent adequate control and certifies, by paying the
services rendered, the strict observation of the commitments assumed by the
private company. The aspects belonging to eligibility criteria are influenced
especially by the strategies, policies and programs assumed by the political factor
rather than the pressures of the private sector.
10. The eligibility criteria must be linked to the requirement of reducing
custody
In case the depopulation of the preventive detention centers and jails is the
main motivation of instituting electronics monitoring services, the decision-
making factors can impose, by application norms, the narrowing of the selection
process to the substitution of custody. The advantage of normative narrowing
17)
See point 19 from P. Hassett, The Use of Electronic Monitoring for Pretrial Release, 5th BILETA
Conference British and Irish Legal Technology Association,2005, p.10, http://www.bileta.ac.uk/.
15
consists in the fact that it restricts, at least formally, the requirements of eligibility
in the perimeter of the offenses which require custody. In practice, the
particularities of the act of trial may require hat this limit be exceeded, and the
enforcement of the program be extended also to other categories of offenses. In
such situations, the necessity and timeliness of imposing the programs must be
thoroughly justified in order to eliminate any controversies. On the other hand,
strict anchoring in the jailing area becomes a barrier against the promotion of
electronic control as a public service and, equally, against the improvement of the
criminal justice act
18)
.
11. The debate between electronic monitoring versus custody does not cover
the whole range of issues and gives monitoring an undeserved first position
Preliminary theoretic and practical research on the impact of the monitoring
services by electronic system are very useful and should be directed towards the
process of noticing and prevention of the appearance of dysfunctions in the area
of legality, observation of the fundamental rights and efficiency of the act of
justice as a whole.
In our opinion, custody versus alternative measures of preventive detention
which can be ordered in order to prevent the evasion of the offender or defendant
from criminal prosecution, trial or time serving is the central subject of the
analysis. In this context, electronic monitoring offers more guarantee, security
and control of the decisions which institute the obligation of some less severe
restrictions than preventive detention.
The decision regarding the order for preventive detention or other obligations
opposed to it, with or without electronic monitoring, in directly influenced by the
nature and gravity of the offense, weight of the evidence in the file, existence of
other thorough leads and, equally, the character of the defendant, his/her social
behavior, priors of criminal nature or the stage of previous obligations ordered in
the said case.
The option for one of the alternative measures to custody is marked by the
existence and particularities of the elements with uncertain evolution. Subjective
factors – thoroughness of the leads, behavior, social-professional status, priors –
give a great responsibility to the court, which, in many instances, considers itself
obliged to make appeal to intuition and experience when it opposes to the measure
of preventive detention more permissive restrictions and obligations, also
assuming certain risks. In this situation, the services and programs of electronic
monitoring come to the support of the options contrary to custody, by exercising a
true and permanent control of the individuals.
18)
This is the reason which could prevent application of electronic monitoring in the case of
provisional parole under judicial control or on bail, for instance.
16
According to the data of a study carried out in the United States of America,
more than 50 percent of the persons accused of theft, fraud or deceit were arrested
preventively because the courts considered that there are “thorough leads” which
prevent provisional parole on bail. 33 percent of the persons against whom the
preventive detention was ordered were sentenced to imprisonment. The same
study reveals the fact that 25 percent of the persons paroled provisionally on bail
breached the measure and were arrested preventively. In return, in the case in
which was ordered complementarily also the measure of including the subjects
into electronic monitoring, the rate of conformity was 90-95 percent
19)
. The data
are sufficiently conclusive and underline the contribution of the monitoring
services in support of the alternative preventive measures.
There are opinions which support the thesis according to which electronic
monitoring has no impact on the relaxation of overcrowding the preventive
detention centers or penitentiary institutions. In the context in which the analysis
is based exclusively on the wager custody versus electronic monitoring, the
reasoning can be accepted as a counter-argument of reference. Of course, the
point of view is easily fought against when the objectives of the grounding and
timeliness studies are directed towards the increase of the weight of alternative
measures in comparison to preventive detention and reduction of costs related to
the act of criminal justice, in general, and of the expenses related to the
management of the detention centers and jails in particular.
The condition is that the services and programs of electronic monitoring must
be considered a support of the preventive measures, others than detention, and
house arrest. This way, the services and programs of electronic monitoring have a
determined contribution in achieving the targets expressed by the partial or total
inhibition of the circumstances which support preventive detention, concomitantly
with the consolidation of the trust of the decision makers in the application of the
other security giving measures, as well as to diminish the demand for new
detention capacities.
The opponents of the electronic monitoring programs bring frequently into
debate the counter-argument that monitoring does not prevent individual’s
evasion from the requirements ordered by the court. The thesis has a pronounced
institutional and media-related impact, and the considerations are, partly, real and
to be taken into consideration for the protection of any electronic program of
judicial control.
When formulating any point of view there must not be omitted the fact that
the electronic monitoring services and programs pursue subjects’ civic
disciplining and putting in order as well as their protection against the negative
consequences of imprisonment by making the individuals responsible and with
19)
See C. S tone, Bail Information for the Crown Prosecution Service, London; Vera Institute
of Justice, 1988.
17
their consent, so that the obligations assumed are received as a “second chance”.
Also, it is necessary to be taken into consideration also the fact that monitoring is
not a measure in itself, but it appears on the background of supporting a measure
which does not deprive one of freedom ordered by the court, a probation or social
reintegration program and is addressed to offenders quartered in the grey area of
the social risk.
12. The electronic monitoring services are grounded around four
essential judicial notions: consent, restriction, detention and house arrest, and
their mode of normative regulation influences decisively the creation of an
efficient monitoring system.
The necessity, role and importance of the consent were underlined. In practice
the threshold of acquired acceptability is exceeded by the consent of the subject,
because, in many instances, he/she is the one who requires, via his/her lawyer, a
preventive measure adverse to preventive detention, with electronic monitoring.
Restriction, detention and house arrest can last from several hours a day to
total restriction to leave the residence. In principle, each imposition allows the
user to go to work, to go shopping, to go to church, school, to undergo medical
treatment or participate to counseling sessions, to pay and receive visits.
The flexibility and spectacular aspect of the programs are sufficiently
seducing for the courts, individual and community so that electronic monitoring
be able to become a custom in judicial practice, more so as it dies not address to
offenders with particularly grave and violent deeds.
The programs based on restriction and house arrest have various degrees or
levels of restriction. These can evolve from a restriction to leave the residence
limited to a certain time interval up to the interdiction to leave the residence the
entire duration of the day.
As an example, in the United States of America, at federal level, there are
used three levels of interdictions. The first level imposes to the participants to the
program their presence at the residence at the residence at certain hours or
between certain intervals of time. The second level, corresponding to a form of
permissive house arrest, requires from the participants to remain permanently at
home, except for the time allotted for other activities of the program, such as:
work, school, treatment, religious service, solution of aspects related by the
criminal trial as well as other situations mentioned in the program as obligations
or facilities. Limitation of the freedom of movement operates, as a rule, during the
night and has a span of maximum 12 hours. The most restrictive level, house
arrest as such, requires subject’s presence at the residence 24 hours a day, except
foe the time approved by the court and allotted for chronic or emergency medical
treatment, presentation in courts and other strictly required activities.
Electronic monitoring services and programs, grounded on restriction and
house arrest, demonstrated, with precise evidence, that they imprint a descending
18
trend to the rate of recurrence, both at the level of adults and minors
20)
. Electronic
monitoring, in spite of the fact that it is not the most popular means of juridical
control, exceeds in fidelity and efficiency the activity carried out exclusively
through the human factor. Additionally, they offer at least two advantages, secure
as compared to imprison-ment.
In the first place, it reduces the public fiscal burden, since it allows adult
offenders to work and the minors to continue school education. In the second place,
it relaxes the humane and financial costs of custody of the offenders. Contrary to
opposed opinions, restriction, detention and house arrest, the services and programs
of electronic monitoring are viable instruments which contribute to the increase of
the efficiency of the act of criminal justice by exercising a certain control over the
dynamic of the rate of recurrence and cutting down the related expenses.
Although the use of electronic monitoring devices for offenders and
defendants became known within the frame of the programs of restriction,
detention and house arrests under the name of labeling, the term must be avoided
from use because, in our opinion, it does not correspond to the reason of being of
this activity.
13. Implementation of the electronic monitoring services and programs is
determined by the appearance of a political, social or economic moment,
favorable to or sharpening of the issues related to the management of the
criminal phenomenon
The peak is reached at the moment of triggering the process of updating and
alleviating a normative framework and policies in matters of criminal justice, in
accord with international theories and practice, on the background of increase of
imprisoned population, the necessity to cut down humane and financial expenses
and the requirements of improvement of the efficiency of the correctional act, in
general. There must not be omitted the positive contributions furnished by the
permanent development of the monitoring system and technical devices and the
sustained marketing of the private companies interested to sell technology,
provide training services to users and maintenance of the equipment or rendering
of complete services
21)
.
There are three main reasons which support the implementation of electronic
monitoring:
Detention: electronic monitoring services and programs have the capacity
to report the presence of a person at a certain assigned place. The programs
specific to the restriction, detention and house arrest provide that the offenders are
20)
J. Bonta, S. Wallace Capretta, J. Rooney, Can Electronic Monitoring Make a Difference?
An Evaluation of Three Canadian Programs, “Crime & Delinquency” 46(1 ), 2000, p. 61–75.
21)
See M.G. Maxfield, T.L. Baumer, Home detention with electron ic monitoring; Comparing
pre-trial and post conviction program, Crime & Delinquency, vol. 36 no. 4, p 521-536, 1999.
19
forbidden to leave the residence during the restriction period. This category of
monitoring was among the first used and remains the most used one
22)
;
Restrictions: electronic monitoring may be used to forbid access of the
offender in certain areas or to approach certain persons, such as the victims,
potential victims or even accomplices;
Monitoring: it is the reason of being of the services; due to this function
the authorities can monitor permanently, within the limits of the set program, the
movements of the offenders without intervening, in fact, over their decisions.
14. House arrest is a legal notion which is not found in the Romanian
criminal trial norms
The positive results obtained in other international jurisdictions justify us to
make a number of succinct references.
House arrest represents an assembly of measures destined to act directly on
relaxing the overcrowding of jails, diminishing the requirement for new
imprisonment capacities and, implicitly, optimizing the management expenses
23)
.
House arrest is a legal facility which can grant to a category of convicts with
penalties of up to four years, probation up to 60 days earlier, by inclusion in an
electronic monitoring program, as a consequence of a preliminary trial for risk
assessment. Completion of the program is, in principle, conditioned by the existence
of an adequate residence – dwelling or guest-house – and a land phone line
24)
.
The house arrest programs with electronic monitoring bring consistent
benefits to prison managements. For example, at the level of Great Britain, by
programs of house arrests are monitored approximately 16,000 detainees per year.
In the first 16 months since the implementation of the program in January 1999,
more than 21,000 detainees were integrated in house arrest programs, out of
72,000 eligible inmates from a total of over 82,000. During this period,
cancellation of the measure was ordered for 5 percent of the subjects. Usually, the
index of returns to prison of the house arrest programs is relatively reduces and
constant, of 5-6 percent, and the profile of the subject has a relevant role in
favoring these results.
Exclusion from the program and return to prison were mainly due to
deviations regarding house arrest – 68 percent of the cases –, the appearance of
22)
See Mukherjee, S. 1999, "Intermediate sanctions: Electronic monitoring and house arrest",
in G. Newman (ed.), Global Report on Crime and Justice, Oxford University Press, New York,
http://www.aic.gov.au/publications/ si Crowe, A.H. 2002, "Electronic supervision: From decision-
making to implementation", Corrections Today, vol. 64, no. 5, p p. 130-133.
23)
Home Dete ntion Curfew (HDC), the system was introduces in England and Wales on
January 28, 1999.
24)
K. Dodgson, Ph. Goodwin, Ph. Ho ward, S. Llewellyn-Thomas, Ed. Mortimer, N. Russell,
M. Weiner, Electronic monitoring of released prisoners: an evaluation of the Home Detention
Curfew scheme, Home Office Research, Develop ment and Statistics Directorate March, 2001, p . 2.
http://library.npia.police.uk/docs/hors/hors 222.pdf.
20
alterations of the initial legal situation – 25 percent – and, in part, the change of
the residential situation. Edifying for the rigor of the selection criteria is the fact
that only 1 percent of the persons placed in house arrest were returned to prison
for the reason of high risk to public security.
The gravity of the deed perpetrated, the category of the jail, the behavior in
the period of detention and the profile of the detainee are the main trial criteria.
The degree of exigency increases in the case of selecting the subjects who present
a high risk of recurrence or return to prison by breach of restrictions, especially
detainees coming from jails with a high security degree. The majority of the
subjects selected in house arrest programs come from the category of detainees
with moderate social risk, a fact which suggests the severity and rigor of the
assessment process, absolutely required in order to prevent new criminal events.
House arrest is perceived in many instances as a reward granted inmates with
an adequate behavior.
Statistics show the notable difference with regard to the profile of the selected
inmates. Thus, the female inmates enjoy additional attention for the inclusion in
house arrest programs, recording a figure of 40 percent of the total eligible
inmates, so far as they represent 10-15 percent of the detained population. The
segment of adult inmates has a larger weight as compared to young inmates,
colored inmates outrun the white inmates, i.e. 31 percent as compared to 29
percent, and Asian inmates outrun the other categories of foreign inmates, i.e. 51
percent as compared to 39 percent. All these values are in close contact with the
structure and exigency of the eligibility criteria, compared to the assessment of the
social risks and potential for recurrence
25)
.
The nature and gravity of the offense hold a special importance for the
eligibility criteria. The convicts with offenses with high social danger or
perpetrated with violence and the recidivists in deeds of theft and aggravated theft
hold a relatively low weight as compared to the offenses related to occasional
consumption of psychoactive substances, fraud, forgery and use of forgery, deeds
characterized by relatively low rates of recurrence and indexes of probation with
high values. The rate of return to prison of the offenders convicted for theft and
aggravated theft is of approximately 10 percent and 1-2 percent in the case of
those convicted fpr fraud, forgery and use of forgery.
Useful in the economy of house arrest services are the opinions of the subjects
restricted to the residence, those of the family members and persons responsible
from probation and monitoring services. The results of the surveys made for these
categories of persons show the fact that the house arrest programs are a real
25)
See R. Hood, S. Shute, The parole system at work: a stud y of risk based decision-making,
Home Office Research Study No 202. London: Home Office, 200 0, p.24-26
http://rds.homeoffice.gov.uk/rds/pdfs/hors 202.pdf.
21
success in the achievement of the objective of smoothing the transition process
from custody to reintegration in society.
98 percent of the subjects appreciate favorably the measure of inclusion in
house arrest programs, while the rest of 2 percent mentioned that they would have
preferred to do the rest of their time in prison. 37 percent of the questioned people
showed that the prospect of being paroled earlier with electronic monitoring
influence to the better their behavior in jail, they being preoccupied to meet the
eliginility requirements.
The probation services generally support the house arrest programs,
appreciating that such programs represent a real help for their activities (76
percent). In their great majority, the subjects consider that the information system
must be transparent and improved continuously. In this respect, 83 percent of the
interviewed persons said that they had been informed by written documents, while
29 percent also by video materials and approximately 49 percent considered that
they had not been sufficiently informed before entering the assessment process.
In the opinion of 82 percent of the program subjects, the main advantage is
represented by the recovery of the social contact and family life. 72 percent of the
family members appreciate the contribution of house arrest to the maintenance of
domestic relations and 69 percent underline the cut down of the expenses incurred
by the family during the detention period: parcels, visits, correspondence etc.
The possibility to carry out certain remunerated activities represents the
second mentioned advantage. Approximately 28 percent of the convicts returned
to the old place of work, while 36 percent were recorded as seeking work. The
detention with house arrest is considered both and advantage and a disadvantage
in the execution of a paid activity. Among the advantages there are mentioned the
possibility to seek a place of work and the establishment of an orderly living
regime and in the chapter of disadvantages there are the complaints for the severe
restrictions which limit the possibility of finding a place of night work for
instance (41 percent).
61 percent of the subjects declared at least one breach of the program
26)
. More
than 67 percent of them were due to the operation of the equipment or insufficient
training.
The probation and monitoring services and a large part of the family members
appreciated positively the activity of the operators considering them polite,
amicable and professional, especially at the installation of the electronic system
and solving of the deviations of hierarchic nature.
The deviations can be grouped in four categories, which in many instances
superimpose or interpenetrate. Mainly, these are the causes for:
the operation and reliability of the equipment;
26)
“Breach of r estrictions” refers b oth to ignorable breaches and those which attract
sanctioning of the subject in question, noticeable by the said individual or the monitoring system.
22
aspects of emotional or psychological nature;
possession or management of residences and/or behavior in domestic
couple relation;
isolation, boredom or improper living style etc.
15. House arrest is justified and promoted by a favorable rate cost-
benefits
Analysis of the economic efficiency pursues the identification and assessment
of the expenses generated by the stages of the monitoring process: assessment of
the eligibility and risks, rendering operable the monitoring services and, as the
case may be, and where the situation requires it, quantification of the expenses
determined by the deviations recorded and returns to prison ordered. The sum of
these costs is opposed to the expenses generated by the custody of persons
convicted in a certain period of time.
The advantage of electronic monitoring consists of the highlighting of a sub-
unitary expenses/efficiency ratio. The costs recorded besides the electronic
monitoring services take place in a large interval of values, representing 40-80
percent of the total expenses for detention. In order to promote and support the
electronic monitoring programs there are spread values which tend towards 70-85
percent of the specific custody costs.
In reality, the assessment mechanism is much more difficult and complex. A
pertinent and credible conclusion can be made exclusively on the basis of data
furnished by the pilot project.
Two aspects are relevant: the economy of resources results by the decrease of
the penitentiary population and the reduction of the demand for investments at the
level of preventive detention centers and jails. There must nor be omitted the fact
that, to a certain extent, personnel expenses related to probation and monitoring
services increase.
The efficiency of the electronic monitoring programs remains an open subject.
The areas of research of the efficiency are limited by a relatively reduced number
of indicators and have a narrow investigation area. Usually, the research
objectives are oriented towards the issues of costs, recidivism and prison and
social impact.
The studies carried out on the contents and results of some monitoring
programs sought to highlight the efficiency of the permanent control measure on
various target-categories of offenders.
Not always the results were according to expectations. In many instances, the
data showed that there are no significant differences between the recidivism ratio
recorded by the electronically monitored groups and those who served time in jail.
Most of the opinions lead to the conclusion that electronic monitoring is
neutral with regard to the dynamics of the recidivism index.
23
Frequently there is introduced the thesis according to which the monitoring
systems have a limited impact on the improvement of the social behavior of the
individual, in the absence of some adequate interventions of behavioral and social
therapy and focused on the reintegration of the offenders in the community. The
finding is justified by the fact that electronic monitoring does not approach issues
of behavioral therapy, its scope being to record and signal the conformity of
observing the obligations assumed by the monitoring program. In this context, the
role of electronic monitoring services is to support the actions of social treatment
or social-professional training, the results being more than conclusive.
16. The pilot experiment is the pragmatic mode of integration of the
electronic monitoring services and programs
In the majority of international jurisdictions, the organization, operation and
development of electronic monitoring services were achieved as a result of the
initiation and execution of pilot programs. It is a modality recommended to
Romania.
The diversity of the opinions circulated in institutional plane requests a certain
coagulation of the opinions. That is why carrying out of some experiments in the
direction of coagulating, harmonizing and clarifying the issues and finding
legislative and administrative solutions handy for those who, in a not very far
future, will have to solve cases of this kind, is a good sign.
The debates on electronic monitoring bring to discussion subjects of the
nature of legal, management and administration, control of criminality, provision
of public security, making profitable the costs, and, not last, assessment and
quantification of the emotional impact on the community and person.
It is fundamental to be analyzed to what extent the present legislation allows
the configuration of an electronic monitoring program regarding limitation of
movement of eligible subjects and under what conditions the monitoring services
are constituted in a useful mode of reducing the investigated population in
Romania. Under such circumstances, it is necessary and timely to diagnose the
capacity of public institutions to answer to the requirements to provide complete
and efficient electronic monitoring services.
At conceptual level, the Romanian criminal legislation provides the
possibility to oblige a person engaged in a criminal trial “to wear permanently an
electronic monitoring device”
27)
. Limitation from the operative perception –
suggested by the previously mentioned regulation – and the removal of possible
application deficiencies can be achieved by the operation of certain clarifications
at the level of the legislative package. Supplementation of the legal means by
introducing the notions of house restriction and arrest with restriction at the
residence is a fully justified approach. The deficiencies of operative nature find
27)
Se art. 145, 160
2
and 453
1
, the Criminal Procedure Code in force.
24
their solution in the enlargement of the area of competence and intervention up to
the level of private operators, by outsourcing procedures of the services or public-
private partnership.
Conclusions
The efficiency of electronic monitoring, its role and importance within the
frame of criminality control, degree of penetration in the media with high
vulnerability and social risk are in accordance with the necessity of the mentality
changes with regard to delinquency. Establishment of the moment and modes of
implementation of electronic monitoring services must be determined according
to the fundamental objective of the act of justice: to do all that is best and useful
for the reintegration of the offender in society, with minimum costs. The extent to
which these desiderata are fulfilled is given by the evolution of the weight of
actions opposed to preventive detention and/or punishment in jail in the total of
sentences pronounced in courts.
Certainly, the results of a pilot experiment could clarify many uncertainties.
At international level, the stake of electronic monitoring programs is the
extension of the programs towards grave offenses and individuals with
pronounced deviating behavior. Continuous building and improvement of such
programs, with a large dose of social risk, express a provocation and a search for
the limits of use of electronic monitoring services.
In Romania, the process is quartered in the area of intent. Execution of a pilot
project at the level of the Ministry of Justice, with the support of the affected
public sectors and a private partner with relevant experience may be the long
sought for trigger.
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Criminal Procedure Code of 30.04.1997, in force, published in the Official
Monitor of Romania, part I, no. 78 of April 30, 1997
Law no. 286/2009 on the Criminal Code, published in the Official Monitor of
Romania, part I, no. 510 of July 24, 2009
Law no. 135/2010 on the Criminal Procedure Code, published in the Official
Monitor of Romania, part I, no. 486 of July 15, 2010
26
Government Emergency Ordinance no. 60/2006, for the modification and
supplementation of the Criminal Procedure Code as well as the modification of
other laws, published in the Official Monitor of Romania, part I, no. 764 of
September 7, 2006
American Probation and Parole Association: Electronic monitoring in
intensive probation and parole programs (Monograph), Washington, DC: Bureau
of Justice Assistance, U.S. Department of Justice, 1989
