Introduction

The use of electronic monitoring systems (EMS) to produce a form of house arrest for persons convicted of a criminal offence has been used sparingly in Canadian provinces, to this point. In contrast, many American jurisdictions have implemented electronic monitoring systems as an alternative to conventional incarceration. EMS raises serious questions about the appropriateness of this alternative [or adjunct) to prison, and the BCCLA has been involved in discussions about the implications of EMS as it has been developed in the Pilot Project in the Lower Mainland of B.C.

This draft report centres on (1) an update on the meetings of the Advisory Board on Electronic Monitoring; and (2) a series of recommendations and points of discussion that the BCCLA Board might discuss before the submission of the final report of the Advisory Board to the Ministry of Attorney General, Corrections Branch in 1989.

Update on the EMS Project and Advisory Board

I have been attending meetings of the Advisory Board since September 1987. Dale Beyerstein attended the first meeting of this Board in August 1987, and Bob Ratner also attended Advisory Board meetings in March and April 1988, when I was again unable to attend. Dale and Bob provided notes and comments from these meetings, and I made a short, written presentation to the BCCLA Board Meeting in the winter of 1988. Since the final report for the Corrections Branch is in process, all representatives of the Advisory Board are preparing statements for consideration by their respective Boards. These statements will be incorporated in the final report. The final report is due by December 15th.

The Advisory Board consists of representatives from the John Howard Society, Elizabeth Fry Society, Mothers Against Drunk Driving, Citizens United for Safety and Justice, B.C. Civil Liberties Association, the Salvation Army, and most recently, the Citizens’ Advisory Board on Corrections. The Advisory Board is chaired by Rhonda Latreille of the B.C. Criminal Justice Association. The original representative from the Corrections Branch was Linda Neville, the initial project director, recently replaced by Fred Hitchcock, and Paul Erickson, Colin Richardson, Wyatt Much, and Marianne McNicol are also affiliated with the EM. These staff members, especially Linda Neville and Paul Erickson, have been involved in the Advisory Board discussions, providing monthly updates on the EMS project and contributing to discussions of the philosophy and practical applications of EMS in the province and elsewhere.

We have had a number of guest speakers at meetings. John Conroy, representing the Canadian Bar Association (CBA), provided a detailed, written outline of the CBA recommendations on electronic monitoring, and attended the June meeting of the Board to elaborate on these recommendations. The CBA recommendations were favourable to monitoring as a means of reducing the use of prison. Electronic monitoring should also be used with the consent of the offender, and the CBA was at that time more inclined to favour judicial assessment of the appropriateness of electronic monitoring. In contrast, officials argued for administrative discretion in the use of electronic monitoring; otherwise, “net widening” could be introduced without much control from the Corrections Branch.

Other guests included Steve Mainprize, a doctoral student at UBC who is assisting in an evaluation of the project. The British Broadcasting Corporation filmed portions of our July 1988 meeting, and has released a 15 minute discussion of the electronic monitoring debate, with special emphasis on this debate in England. Several members of the Advisory Board have visited the Lower Mainland Regional Correctional Centre (Oakalla) to observe booking-in procedures for persons serving Intermittent (weekend) sentences, and to observe the prison facilities and procedures for these offenders. In September 1988, two offenders appeared at the Advisory Board meeting. One offender, who had served time intermittently at Oakalla, but not on weekends, commented on the uselessness of incarceration (monotony, separation from family, and pressures to supply contraband drugs). The other offender, twice convicted of impaired driving, had served several days on electronic monitoring and spoke fairly favourably of the experience. Continuity of employment was a key consideration for both men.

The Advisory Board has prepared an interim report, and is currently expanding that Report in order to provide a more detailed final report. There have been many points of discussion, and several points are set out below. Briefly, however, there is a general agreement among the Advisory Board members that EMS may be of value in Corrections and, with the exception of the john Howard position to date, the remaining groups are not wholly opposed in principle to the establishment of EMS. The John Howard representative, while noting positive aspects of the Pilot Project (screening, limited scope, preferences of offenders and families for an alternative to prison), listed several objections to EMS. First, it is discriminatory, since offenders need to have a stable residence with access to a telephone (compatible with the EMS technology; i.e. not a boarding house or hotel). Second, it may have a “very significant impact” on other family members. Third, given its small size, it cannot reduce institutional costs, and appears to be an additional cost. And, fourth, the transfer of power to administrators rather than courts raises the possibility of “administrative abuse”. There was also concern expressed over the “radically new situation” which potentially transforms every home into a state prison. Specifically, concerns were expressed over intrusions into the privacy of the hone, including spot-checks by officials.

Several issues have arisen in the Advisory Board meetings that seem to be of particular interest to the B.C. Civil Liberties Association. These include net-widening, the principle that offenders should consent to serve time on EMS in lieu of conventional incarceration, the possibility of a moratorium on the further implementation of EMS, the controversy over whether EMS is a dehumanising initiative or whether it can be more humanizing than current forms of incarceration. Other issues included safeguards in the application of EMS, and the role of the Advisory Board as a source of feedback to the Corrections Branch.

Before reviewing these points, the key concerns of the Advisory Board seemed to be that justice be done (in the sense of EMS having a punitive element of denunciation and restrictions on liberties). Second, there was concern expressed that the EMS technology should be effective in monitoring the whereabouts of offenders. A third concern was whether EMS is well suited to “correcting” offenders; that is, that it should promote rehabilitation, possibly through attendance at alcohol treatment groups, as one example. It is generally felt that EMS should be used selectively: minor offenders who would not likely be incarcerated should not be subject to EMS, while serious offenders (and the M.A.D.D. representative regards impaired drivers as violent offenders) should not be eligible for EMS, unless there is good reason to believe that they might benefit from this programme. A note of caution about possible misuse of EMS was evident in the meetings, although most representatives were supportive of EMS as an alternative to custody settings (prisons)

Informed consent and electronic monitoring

The notion that offenders should be able to select their punishment or disposition is not conventionally allowed in criminal trials or correctional classification procedures. With EMS, however, the experimental nature of this technology, and the lack of evaluative studies to this point have placed pressure on correctional staff to not require people to enter into an EMS “contract” if the offenders are unwilling. My sense is that offenders are agreeable to entering into the EMS contract, even with its intrusive provisions for entry of officials into their residence for spot-checks.

I have concerns about the need for safeguards for these checks, for this constitutes a substantial intrusion into the privacy of the offender, and his or her family. It is noteworthy that the Canadian Bar Association has produced a resolution that requires the individual’s consent before electronic monitoring is applied.

Net-widening

The concept of net widening rests on the assumption that seemingly benign initiatives by the State often serve to widen the net of social control. This is accomplished by restrictions on groups of offenders who would otherwise not be subject to surveillance, confinement, or other modes of punishment or treatment (e.g., Cohen, 1985). This has been a primary concern of the B.C. Civil Liberties Association (see attached letter from John Russell to New Zealand authorities). It has also been raised by other Advisory Board Members, who have expressed concern that EMS could be introduced on a much larger scale, thereby catching offenders who might have received a probationary disposition. My recommendation is that EMS not be implemented on a province-wide basis, pending the ongoing evaluation by the Ministry and other sources of information. I favour continuation of the EMS Pilot Project in the Lower Mainland, and greater evaluation of nature of EMS, and its implications for civil liberties. Moreover, that EMS not be used as a condition of bail, but rather as a sentencing option only.

Moratorium on further implementation

It is unclear at this time if the ACLU has adopted the moratorium on further implementation, or if this is a position brought forward by one of its members as opinion more so than policy.

In a 1986 issue of the Journal of Probation and Parole, Ari Korpivaara, the Acting Public Information Director of the ACLU, urged a moratorium of EMS until national standards for their use is established. He notes:

The ACLU has seen far too many examples of programs and devices that are advertised as beneficial and then, after their acceptance, are used for purposes other than those they were meant for. Juvenile courts were established so that kids charged with criminal offenses would not be tried as adults. It seemed like a good idea. But the very existence of juvenile courts changed their purpose. Now kids are tried for a status offense such as being a runaway—an offence for which they could never be tried in an adult court.

At this point, it is not recommended that a moratorium on EMS applications on B.C. be implemented.

The reasons we do not support a moratorium are as follows. First, that EMS, as applied in Canada, is used in a very circumscribed manner. EMS is not used for political dissidents, it is not used as a condition of bail, and in general is applied only for persons convicted of a crime, and who otherwise be confined in prison. Second, the argument that EMS transforms homes into prisons is dubious. Current EMS applications in the Lower Mainland do not exceed the levels of intrusion or control characteristic of prisons, although again there is a need to discuss safeguards for spot-checks.

Third, a moratorium might be defensible if State policies were undertaken with little reference to community opinion or without the safeguards of due process of law. In summary, the EMS technology, as it stands, does not automatically pose a clear threat to prisoners or individual liberties in general, and in my view, a moratorium on its use in British Columbia is not warranted at this time. As noted above, however, EMS applications could be applied in a very intrusive manner—e.g. entering a household without permission—and we should be vigilant in protecting individual liberties, even if such intrusions are not routine.

Humanizing or dehumanising technology?

The repressive potential of technology has been raised by many commentators, and this authoritarian motif deserves consideration. There is the legacy of writings by Orwell, Huxley, and Atwood with the theme of State control over individuals. As critics of EMS have also pointed out, the power of house arrest has been used as a totalitarian measure to repress dissidents, and thereby curb free expression. There is the potential danger that EMS could be pressed into service as a control measure for a much wider spectrum: truants, children in custody (e.g., the Maples), probationers, people released on bail, and so forth.

Some writers hold that EMS will surely be extended, in terms of widening the net of people subject to it and the sheer magnitude of surveillance and monitoring of people. There are also grounds for concern about the selective use of EMS. It may be that EMS is used for what are seen as more deserving offenders: those with jobs, stable residences, and telephones compatible with the EMS technological requirements. Would we see even greater use of conventional prisons for offenders with the least resources?

Others take a more optimistic view of EMS. It has been hailed as a means whereby substandard prison conditions (including overcrowding, lack of privacy and security from harm, restrictions on visiting and correspondence) can be avoided. In that respect, the home setting is preferable to a “total institution”. It is also arguable that EMS, by permitting offenders to continue working (where applicable], is desirable from the offender’s viewpoint, and in terms of public policy. Again, the potential of EMS as a method of community-based correction cannot be dismissed, especially with respect to the prospect of reducing the number of people confined in prisons

Safeguards on the use of electronic monitoring

One safeguard for EMS applications is to designate the limits of EMS as set out above; that is, for persons convicted of an offence, with time-limitations (for instance, no longer than 30 consecutive days), and that EMS could not be ordered without the consent of the offender.

Another safeguard is to monitor whether the EMS technologies are based on privatization at some future point. EMS may be increasingly appropriated as an entrepreneurial resource, and there are concerns about how our Association would monitor its activities if it were privatized.

Role of the advisory board on EMS

It is rare that a community Board accompanies an EMS project. There seems to be a general feeling among EM Advisory Board representatives that this Board should continue. It is not a watchdog position but rather an advisory role that may be useful in commenting on specific procedures associated with EMS, and also some representatives have spoken strongly for the elimination of EMS, or very judicious use of EMS.

Recommendations

1. That the EMS Pilot Project be continued as an alternate means of confining non-violent offenders.
2. That EMS be used to reduce prison populations. It has been noted by some members that EMS may be a useful measure, even if prison populations are not reduced. Increases in serious crimes, for example, might result in stabilized or increased prison use, and EMS might be useful in its own right.
3. That EMS should only be used for offenders who have been convicted of a crime, and are confined, or liable to detention. This means, for example, that EMS should not be widely applied as a condition of bail, but only where the accused person would otherwise be held in detention. This corresponds to our general concern over “net-widening” through EMS.
4. That offenders should not be required to participate in the EMS programme, unless they consent to this participation. The reasoning here is that EMS is a new form of control, and some offenders may have valid reasons to believe that they cannot meet its conditions.
5. There is also concern that families of offenders may be in jeopardy, specifically from assault by the offender. In addition, an offender should not be sentenced to EMS if his or her spouse expresses concerns over potential violence in the household.
6. Since EMS is used primarily for persons convicted of impaired driving, it is recommended that EMS should be sufficiently flexible to allow offenders to enter treatment or support programmes for the treatment of alcohol abuse/alcoholism. There is concern that EMS offenders may not have access to such programmes, and access to treatment could be facilitated through EMS.
7. That greater attention be given to the selection process for EMS. This could include serious consideration of non-electronic dispositions, where some offenders (without telephones, or single residences) would be eligible for release into the community. It would also be helpful to determine if there is a greater likelihood of EMS being used for the “respectable” criminal, with a steady employment, and not for other groupings.