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The Legal Implications of Information Technology

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					    Evidence-Based
 Electronic Monitoring:
 The Legal Landscape
   and (Inconsistent)
       Evidence
Brian K. Payne, Georgia State University
Deeanna Button, University of Delaware
Matthew DeMichele, American Probation &
Parole Association
Objectives

 1.Discuss how laws effecting the use of electronic
   monitoring tools have shifted, especially to
   incorporate location tracking with GPS.
 2.Discuss how these legislative changes have
   implications for the way community corrections
   officers supervise offenders.
 3.Provide information about the effectiveness of
   electronic monitoring tools.
Evidence-Based Electronic
Monitoring of Sex Offenders
[cont.]

   Technology
           Rapidly evolving
           Legislation = active GPS
   Technology is one more tool
           Combined with others
           Means to end = structured containment
           Not the end
   Provides WINDOW into offender’s life
Evidence-Based Electronic
Monitoring of Sex Offenders
[cont.]
      Many electronic tools to supervise offenders
      Technology
             Radio frequency
             Location tracking
             Computer monitoring and forensics
             Crime and GPS data integration
             Polygraph
             Others
Radio Frequency: Martha
Stewart’s Model
Radio Frequency
Radio Frequency               [cont.]


    Home arrest
    Curfew monitoring
    Judge Love (Albuquerque, NM)
    1983
      By 1990 in 50 states
      Several countries
  Repairs
  False positives of violations
Radio Frequency                 [cont.]


  Drive-by units
  Random calling
      Identity verification
      Slow scan photos
      Electronic voice analysis
      Remote alcohol detection (late 1980s)
Location Tracking
Location Tracking    [cont.]


  Late 1990s
  Cellular
   Technology
  24 Satellites
  U.S. Department
   of Defense
Location Tracking         [cont.]



  Active and Passive
  Exclusion Zones
  Workload Differences
  Liability
  Legislation
Benefits of Using GPS

    Flexibility
    Reintegration
    Control
    Retribution
Benefits of Using GPS

  Flexible
    Can be applied to different types of
     offenders
       Sex offenders
       Burglars
       Domestic violence offenders
       Gang members
Benefits of Using GPS

  Reintegration
    Offenders are able to live at home
    Maintain employment
    Avoid criminogenic conditions related to
     incarceration
Benefits of Using GPS

  Control
    Capacity to effectively control offenders via:
       Inclusion and exclusion zones
       Curfews
       Data points show offender’s daily movements
          Is he/she spending time at McDonald’s (playground)?
          Or why is he/she spending so much time at the Mall
           (kid’s stores)?
Benefits of Using GPS
            Retribution
               Deprivation of autonomy
               Deprivation of goods and
                services
               Deprivation of liberty
               Deprivation of intimate
                relations
               Monetary costs
               Family effects
               Watching others
               Bracelet effects
Cost of Using GPS

  Seemingly cost effective
       GPS: $10 per day
       Incarceration: $60 per day
       Civil confinement: $110,000 per year
Cost of Using GPS
  Incarcerated
   populations remain
   the same
  Community
   corrections
   populations
   continues to grow
  GPS is an additional
   cost
Cost of Using GPS

  Estimated GPS cost
    $9,000 a year per sex offender
  Actual cost:
    Tennessee: $2.5 million a year for 650
     offenders
    Iowa: $2.4 million a year for 500 offenders
  Fees pay for technology
  Fees do NOT pay for the workload
Legislation

  Political Fears          Unanticipated Effects
     Stems from media        Fails to consider
      driven frenzy            legislation’s impact on
     Agenda driven            criminal justice
      politicians              administrators and
     Frightened and           practitioners
      concerned citizens
Legislation for Effective
Community Corrections Policy

  47 states have EM legislation
  14 states have legislation describing
   GPS for sex offenders
  7 states use either active or passive
   systems
  8 states require the use of active
   electronic monitoring
Legislation for Effective
Community Corrections Policy
  18 states clearly define use of EM
  29 states require offenders to pay at least
   a portion of EM fees
  17 states regulate the amount of time
   offenders spend on EM
    11 of these states stipulate time limits for
     general EM devices
    7 of these states place specific time limits for
     GPS supervision
Legislation for Effective
Community Corrections

  27 states have specific policies for
   monitoring sex offenders
    19 states require EM for sex offenders
  Only three states mention EM use for
   domestic violence offenders
  Four states use EM for convicted drug
   and alcohol offenders
Legislative Typologies

    General vs. Specific      Evaluation
    Sentence Integration      Offender Fees
    Risk Assessment           Child Abuse
    Punitive                  Repeat Offenders
General vs. Specific
Policies
  General Policies
    Lack precise definition of EM expectations
    Neglect to mention
       Type of offender
       Length of time to be monitored
       Mandatory technological capabilities
General vs. Specific
Policies
  General Policies (examples)
    Pennsylvania: Individuals eligible for house
     arrest involving EM shall be determined by
     administrative staff
    Utah: In determining its sentence the
     court…may require the defendant to
     participate in an EM program
General vs. Specific
Policies
  Specific Policies
    More specific in policy stipulations
    More likely to mention
       Type of offender
       Length of time to be monitored
       Mandatory technological capabilities
General vs. Specific
Policies
  Specific Policies
    Florida: Requires that offenders who are designated
     sexual predators must upon release and for the rest
     of their life be subject to GPS
    Indiana: Requires a sexually violent predator be
     placed on lifetime parole to be monitored via GPS
     device. Amends definition of “monitoring devices” to
     include those that provide 24 hour information on an
     offender’s location, and capable of notifying
     appropriate officials of offender’s violation
Sentence Integration

  Integrate EM into the offender’s sentence
    Kansas, Louisiana, and Maine: Mandatory
     prison sentences in addition to required
     lifetime electronic monitoring
    Michigan: Requires a term of 25 years
     without possibility of parole [and] requires
     lifetime electronic monitoring…”
Risk Assessment

  Risk assessments to determine the
   probability of offender recidivism
  Provisions of sexually dangerous:
    Seriousness of the assault
    Age of the victim
    Number of prior offenses
Risk Assessment

  Review boards used to assess sexual
   dangerousness of offender
    Louisiana, New Mexico, and Connecticut
    Georgia: requires GPS monitoring if Sexual
     Offender Registration Review Board deems
     and offender “sexually dangerous”
Risk Assessment

  EM utilized according to risk
  Categorized to one of three levels
    Risk of repeat offense
    Risk to public safety
    Violent predator status
       Montana: GPS monitoring must be imposed upon “level 3
        sex offenders”
       Illinois: requires those convicted of an offense that would
        qualify the accused as a sexual predator be subject to EM
Punitive Nature of Policies
  Used as Additional             South Carolina:
   form of long term                 Electronic
                                      geographical location
   punishment                         monitoring
    Florida:                        Offenders who violate
       Sexual offenders              terms of community
                                      supervision
       Upon release and for
        the rest of their life       Used as additional
                                      punitive sanction
       Subjected to GPS
        “active electronic
        monitoring”
Evaluation of Policies

  Data collection required to evaluate sex
   offender electronic monitoring legislation
    Illinois and Kansas: statistical information on
     numbers of offenders required to register
     who are subject to electronic monitoring
    Indiana: mandates reports on cost and
     implementation issues of GPS monitoring,
     including feasibility of recovering expense of
     GPS from offenders
Reliance on Offender Fees

  Offenders must pay        Exceptions
   for monitoring             mentioned
    Or a portion of fees      Louisiana and Alaska
    Georgia, Michigan,      Unanticipated
     Oklahoma,                Consequences
     Tennessee…
                               Realistic
                               Workload
Child Abusers

  Victim age
    Specific vs. General
      “crimes against children under age 14”
      “particularly those against children”
  Mandatory terms
    Mandatory sentence length
    Mandatory conditions
Child Abusers
   Georgia:
      Minimum sentence 25-50 years or life
      Particularly for forcible crimes against children under age
       14
   Florida:
      sex crimes
      particularly those against children
      upon release and for the rest of their life be subject to GPS
   Wisconsin:
      lifetime GPS tracking
      probation for committing a serious child sex offense
Repeat Offenders
  Severe sentences for repeat offenders
    Kansas
       First-time offenders: minimum 25 year sentence without
        parole
       Second-time offenders: minimum 40 year sentence without
        parole
       Third-time offenders: life without parole
    Michigan and Iowa
       Second-time offenders: life without parole
    South Carolina
       Second-time offenders: death penalty for sex crimes
        against a child less than 11 years of age
Legislation and Electronic
Monitoring
  The use of GPS to monitor sex offenders
   represents perhaps the most
   comprehensive form of legislation that
   has been passed
Legislation and EM:
Unanticipated Consequences
  EM of sex offenders      The use of these
   is recent legislative     policies to control
   concern                   sex offenders
                             continues to increase
  Policymaking              despite the lack of
   community blurring        empirical research
   issues of electronic      supporting such
   monitoring and sex        growth
   offenders                One more Tool (not
                             the only tool)
Legislation and Electronic
Monitoring
  Electronic monitoring of sex offenders
   result of:
    Growing political and public concern about
     sex offenders
    Technological shifts
    Evolving template of state sex offender laws
Expectations of
Community Corrections
  Rehabilitate and punish    Expectations are difficult
   offenders                   to fulfill
  Free up jail and prison    EM is not a program, but
   space                       a tool
  Reduce Cost                EM contributes to
  Ensure offender             information gathering
   compliance through         Information about the
     Treatment                offender
     Enforcement             EM does not reduce the
     Surveillance             human component
Where’s the Evidence?
  Does electronic monitoring work?
  Does electronic monitoring reduce recidivism?
  Does electronic monitoring improve case
   management?
  How do we know?
Where’s the Evidence?                   [cont.]
   Little research - weak methodologies
   Mixed results
     Better for some populations
     Differences across types of offenders
   What is purpose of electronic
    monitoring?
     Punishment?
     Accountability?
     Behavior change?
Where’s the Evidence?                          [cont.]

  Not a FIX
    Electronic Monitoring does not replace OFFICER
    ONE Tool
       Incorporated with other TOOLS
       Create highly structured CONTAINMENT
Evidence          [cont.]


  Finn and Muirhead Steves (2002)
    High-risk male parolees
    Electronic monitoring showed no impact
     after four years
    Sex offenders on electronic monitoring
      Less likely to return to prison
      Longer survival in community
Evidence         [cont.]


  Bonta, Wallace-Capretta, & Rooney
   (2000)
    Electronic Monitoring + Treatment
    LOWER recidivism for high-risk
    No effect on lower risk
      Match offender to interventions
      Low-risk in high-risk setting
      More recidivism
Evidence       [cont.]


  Padgett, Bales, & Blomberg
    75,661 (RF and GPS)
  Electronic monitoring of offenders in the
   community may prove an effective public
   safety alternative to prison
Evidence          [cont.]
  Technical violation       Revocation for new
    RF = 95.7% less          crime
     likely
    GPS = 90.2% less          RF = 95% less
     likely                     likely
    SO = slightly less        GPS = 95% less
     likely                     likely
  Absconding                  SO = 44.8% less
    RF = 91.2% less            likely
     likely
    GPS = 90.2% less
     likely
    SO = 42% less likely
GPS for Violent Offenders:
Some Concerns
  Lack of research
  Workload
  Net-widening
  False sense of security
  Responsiveness to characteristics of
   violent offending
  Sanction’s responsiveness to the
   motivations for offending
GPS for Violent Offenders:
Some Concerns
    Stigma and degree of control
    Redefining the justice orientation
    Legal issues
    Cost of using GPS
GPS for Violent Offenders:
Some Concerns
  Establish purpose of GPS monitoring
   policies
  Clearly defined goals make successful
   implementation more probable
  Do not over-estimate actual abilities of
   technology
GPS for Sex Offenders:
Some Concerns
  Recognize that policies
   may have unintended
   negative
   consequences and be
   prepared with
   appropriate remedies
GPS for Violent Offenders:
Some Concerns
  Zero tolerance        Probation and parole
   policies should be     officers should
   avoided                expect dramatic
  Training               workload increases
  Funding                 Must maintain
                            physical contact and
                            “intense scrutiny”
                           Must take all alerts
                            seriously
GPS for Violent Offenders:
Some Concerns
  Collaborative effort is required
    Law Enforcement
    Jails/Prisons
  Probation and parole officers are NOT
   solely responsible for sex offending
   prevention
GPS for Violent Offenders:
Some Concerns
  More criminological research in this area
    Research should focus on
       Sex offenders and strategies to control them
       Officer and Offender interaction: How do GPS
        policies affect this interaction?
Unanticipated Consequences of
Monitoring Policies for Sex
Offenders
    False sense of security
    Sanction stacking
    Restructured workloads
    Anomic conditions in the electronic monitoring program
    Isolation
Unanticipated Consequences of
Monitoring Policies for Sex
Offenders
    False sense of security
      EM policies may not be providing direct
       protection to the community
      95% of all sex crimes involving a victim less than
       18 years of age involve a known offender
Unanticipated Consequences of
Monitoring Policies for Sex
Offenders
  Sanction stacking
    Occurs when probationers and parolees are
     exposed “to a number of punitive and
     rehabilitative controls, which often leads to
     violations and returns to the correctional
     system”
Unanticipated Consequences of
Monitoring Policies for Sex
Offenders
  Restructured workloads
    GPS supervision increases per offender
     workload by lengthening the enrollment
     phase for an offender
    Time spent informing the offender with
     various operation and technological
     concerns
    Time spent fitting, cleaning, replacing,
     maintaining equipment
Unanticipated Consequences of
Monitoring Policies for Sex
Offenders
  Anomic conditions in the electronic
   monitoring program
    The potential for normlessness in officer
     caseloads escalates with unrealistic
     expectations and lack of guidance
    One problematic offender will make it difficult
     to supervise other offenders
    Officer confusion
Unanticipated Consequences of
Monitoring Policies for Sex
Offenders
  Isolation
    Potential to push officers further away from
     face-to-face interaction with offenders
Brutalization Effect

  Offenders may perceive the controlling
   nature of GPS in negative ways and
   react aggressively as a result of the
   sanction
Implications of Current
Legislation and Evidence
  General vs. Specific Policy
    States with specific policies may have
     dramatically increased workloads
Implications of Current
Legislation and Evidence
  Sentence Integration
    Officers will need to expand their abilities to
     ensure that various types of sentences are
     administered simultaneously or
     consecutively
Implications of Current
Legislation and Evidence
  Risk Assessment
    Officers will need to be effectively trained to
     determine risk
Implications of Current
Legislation and Evidence
  Punitive Nature of the Policies
    Probation is generally seen as rehabilitative
     and treatment oriented
    GPS may be most punitive form of probation
Implications of Current
Legislation and Evidence
  Evaluation of Policies
    Officers must be trained to gather
     appropriate data that will effectively assess
     the utility of policies
    Empowerment approach to evaluate policies
Implications of Current
Legislation and Evidence
  Reliance on Offender Fees
    Officers need to make sure offenders are
     paying for the monitoring
    Officer will need to work with offenders to
     make sure they are paying bills
    Officers must recognize that fees alone will
     not be enough to pay for GPS
Implications of Current
Legislation and Evidence
  Breadth of Offenders
    Officers will need to be able to deal with a
     variety of offenders
       Child perpetrators
       Young offenders
       Repeat offenders
Implications of Current
Legislation and Evidence
  Implied Causality
    Narrowly defining cause of sexual abuse
     may place individuals at risk and be an
     ineffective use of resources
       Laws: sex offending is caused by opportunity and
        availability
       Research: histories of violence and other factors
        contribute to sex offenders’ motivations
Implications Current
Legislation and Evidence
              Consider workload
                 Repairs and
                  malfunctions
                 Responding to alerts
              Consider liability
                 Active GPS
                 Constant information
                 Must process
                  information
Implications Current
Legislation and Evidence
  Consider offender type
    Location tracking = high-risk sex offender
    Curfew monitoring = lower-risk offenders
Implications Current
Legislation and Evidence
  Improve performance
    Short-term management
    Treatment completion
  No behavior change
    Lack long-term
    Lack cognitive-behavioral adjustment
Implications Current
Legislation and Evidence
  Integrate TOOLS
    Not a panacea
    Highly structured = external control
       Containment of offender’s life
    Overall strategy of ACCOUNTABILITY
  Legislation
    Mandating active GPS
Recommendations for Probation
and Parole Officers

  Must recognize the diverse nature of
   offenders
    Each type of offender poses varying levels
     of risk and different criminogenic needs
    Treatment and interventions must be
     individualized
Recommendations for Probation
and Parole Officers
  Must be adequately trained to use electronic
   monitoring strategies to supervise offenders
Recommendations for Probation
and Parole Officers
  Must be a part of a supportive environment that
   will help overcome the consequences of
   isolation
  Must pay attention to potential for burnout
Recommendations for Probation
and Parole Officers
  Must work with researchers to validate that
   response strategies are evidence based
  Need to utilize strategies that are Proven
   effective
  Must have clear expectations for the
   technology
Contact Information
 Matthew DeMichele    Brian Payne
 American Probation   Old Dominion
   and Parole           University
   Association        bpayne@odu.edu
 (859) 244-8123
 mdemichele@csg.org   Deeanna Button
                      Old Dominion
                        University
                      dbutton@yahoo.com

				
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