Critically assess electronic ‘tagging’

The prison population in England and Wales has risen considerably to more than 60,000 during the past few years. Government spending on imprisonment is at record levels. To imprison the current population costs in excess of £1. 5 billion per year (Prison Reform Trust, 1997). This rapidly rising prison population not only in the UK but also in other parts of the world, and the obvious escalating costs to the taxpayer, has encouraged policy makers to consider the use of electronic monitoring as an alternative sanction to incarceration (Vass, 1990).

The pressure to find a solution to prison overcrowding has contributed to the incredible growth in interest of electronic monitoring programmes around the world (Esteves, 1990; Baumer & Mendelsohn, 1992). For all practical purposes electronic monitoring equipment first became commercially available early in 1985 (Nellis, 1991; Baumer & Mendelsohn, 1992), although experiments actually began at Harvard University in 1964 by psychologist Robert Schwitzgebel as a way of tracking psychiatric patients in the U. S (Nellis, 1991; Renzema, 1992). During trials in the 1960s the usefulness of the technology as a way of monitoring offenders was soon realised (Nellis, 1991; Vass, 1992). Though the first trial took place in Massachusetts in 1967, little interest was initially shown in electronic tagging until the 1980s when the idea behind the use of an electronic bracelet to monitor an individual’s movement was extracted from a Spiderman comic book by Judge Jack Love in New Mexico in 1983 (Nellis, 1991; Renzema, 1992).

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Since that time a great deal of interest in the technology has been shown by governments, academics, penologists and electronics companies alike (Vass, 1990). As a result of these initial trials, tagging began to establish itself within the U. S corrections system. Today, virtually all states in America have some form of electronic monitoring scheme. Testing in the UK began with the programme of night restrictions for juvenile offenders contained within the Criminal justice Act 1982 and has been sustained to the present day.

The subject of electronically monitoring offenders has continued to gather momentum, as has the debate into the issues it has produced. This essay will track the development of the implementation of electronic monitoring technology and its subsequent usage as an alternative to incarceration and will address some of the issues, both for and against, that electronically monitoring offenders raises. The essay will also examine ethical issues including civil liberties concerns and the issue of public social control in private spaces.

Technological issues will also be raised including the reliability of the system and the possible scope for expansion in the future. In the UK, the full operation of electronic monitoring followed successful pilot programmes that had been running since 1995 (Sugg et al, 2001). The original pilot projects commenced in Norfolk, Reading and the City of Manchester and were quickly extended to the whole of Berkshire and Greater Manchester (Nellis, 1991; Mann, 1998). In 1997, the trials were further extended to include the areas of Cambridgeshire, Middlesex, Suffolk and West Yorkshire.

Home Office findings from these pilot schemes concluded that the technology worked well and that sentencers liked the rigorous enforcement of the orders and were becoming increasingly confident about using the new sentence (Mortimer ; May, 1997). Indeed, over one thousand curfew orders were made in the pilot areas during the trials with more than 80 per cent of offenders successfully completing their sentence (Home Office, 1998). Further powers were given to the courts in 1997 enabling them to impose curfew orders on persistent petty offenders, fine defaulters, and as a community punishment for 10-15 year old offenders.

In January 1999 the Home Office introduced a scheme of Home Detention Curfews (HDC) that also utilised the technology of electronic monitoring. This scheme allows for the early release from custody for eligible prisoners (Mortimer, 2001). Curfew orders with electronic monitoring where finally introduced as an alternative sentence to custody across the whole of England and Wales in December 1999 (Walter et al, 2001). Curfew incorporating electronic tagging as a punishment is a system of home confinement aimed at monitoring, controlling and modifying the behaviour of defendants or offenders (Mann, 1998).

The system involves the fitting of a small electronic device on the wrist or ankle of an offender and installing a monitoring device at their place of curfew (Esteves, 1990). If the offender is not within the range set by the conditions of a curfew (usually the perimeter of a home) during the curfew hours, then the equipment will detect the non-attendance and report it over a data link to a central monitoring service (Mann, 1998). Violations can lead to the curfew being revoked and the offender being returned to the courts or prison.

The person must remain in the home under surveillance unless authorised to leave for employment, school, and participation on community treatment programmes or similar activities. The tagged person is monitored by computer for 24 hours a day and is supervised either by a private company or a combination of a company and the criminal justice authority, usually a probation department (Esteves, 1990). The private contractors provide the entire electronic monitoring service. They are responsible for providing and installing equipment, monitoring compliance and reporting breaches of the curfew to the appropriate authorities (Mann, 1998).

As with all community sentences, curfewees are liable to be returned to court or, in the case of Home Detention Curfews, prison in the event of a failure to comply with the terms of their Order. Sections 12 and 13 of the Criminal Justice Act 1991 provide for curfew orders enforced by electronic monitoring on offenders aged 16 and over (Walter et al, 2001). To date, electronic monitoring tends to be used for less serious, non-violent offenders who are identified by a risk assessment formula by the probation service.

Nevertheless, tagging is not available to all offenders. For quite understandable reasons the scheme is not available to offenders who have committed crimes of extreme violence or offenders with mental health problems (Walter et al, 2001). Conversely though, the Prison Reform Trust (1997) record that in the early days of electronic monitoring in the United States, offenders with a history of violence or mental disorder were tagged which resulted in a series of assaults and, it is alleged, a number of fatalities.

Similarly if the offender has serious problems at home, the court might not want to risk making these worse by confining the offender to his or her home for long periods. This appears to be the case where the offender has been convicted of a charge of domestic violence or child abuse (Baumer ; Mendelsohn, 1992; Walter et al, 2001). Rather than being an alternative to prison however, it has been suggested that in England and Wales the tag is offered only to offenders who would not normally go to prison, and for whom there are a range of under-used community penalties already in place.

The Association of Chief Officers of Probation (ACOP) has commented that the tagging of low level offenders does not add anything which cannot already be achieved through existing community sentences and may prove very expensive. Whitfield (2000) concurs in arguing that the typical offender who is deemed acceptable for electronic monitoring is an individual over thirty years of age who is in employment and who owns his or her own home and who has been given a short sentence for a minor crime.

In other words this type of offender is seen as the sort of person who would not attract a custodial sentence in the first place and thus does not need to be tagged as a fine would suffice (Whitfield, 2000). The issue of the electronic monitoring not being available to all acceptable offenders is raised even if their offences are the same. Some offenders are deemed to be unsuitable for curfew orders with electronic monitoring purely because of their circumstances.

For example, if an offender has no settled residence, it is generally decided not be sensible for him or her to be required to be at a particular overnight address on a daily basis. If the offender resides in rented or hostel accommodation, permission to install the monitoring device has to be sought from the owner. It has been cited that this permission is not always available (Nellis, 1991). This begs the question of what happens to homeless offenders who commit minor crimes that fit into the appropriate offence criteria.

It could be the case that ‘taggees’ will be forced to reside in inadequate accommodation just because they will grant permission for the equipment to be installed (Nellis, 1991). These dwellings could well bear a resemblance to the overcrowding and poor conditions that the offender may find in prison. As an example in initial trials in the U. K, Christopher Vamey is reported to have asked a judge to return him to prison because he did not like the ‘flea-ridden’ hostel where he was ordered to live under curfew (Guardian, 1989 cited in Nellis, 1991; Worrall, 1997).

Forcing individuals to live for long periods each day in squalid conditions could also increase the likelihood that they will abscond. The advantage of tagging is that it is deemed to be flexible and can deal with different types of offender. Shoplifters can be kept in their homes during shop opening hours, and sex offenders may be confined indoors during the times that schools disperse for example (Campbell, 1995). This unfortunately raises another serious point.

If offenders are required to be confined to their homes, due to their type of offence, particularly during daylight hours then there is little chance that they will be able to firstly, hold down a job if they have one, secondly, if they do have a job, be available to work overtime at short notice and thirdly, if they are unfortunate enough to be unemployed they could be deemed unavailable for work and as such lose any benefits they would normally be entitled (Nellis, 1991). The case of one of the first offenders to be tagged in initial trials in England and Wales articulates this issue as reported by the media at the time.

It was bad enough that he is not allowed to move more than 200 feet from his telephone for 21 hours a day, but the Department of Social Security has ruled that he is not available for work and cannot claim benefit. The family is living on 60 per cent of the discretionary hardship grant of £24. 90 a week” (Guardian, 23 August, 1989 cited in Worrall, 1997). It could be argued that being forced into a position of poverty such as this will only serve to encourage individuals to commit crime in order to survive. It is generally acknowledged that the technology of electronic tagging has advanced a great deal since the early trials.

Nonetheless, as with any piece of modern technology, whether it is a video recorder, television or electronic monitoring system, absolute reliability cannot be guaranteed. Almost every study into the use of electronic monitoring has reported problems of some sort with the technology (Nellis, 1991; Baumer & Mendelsohn, 1992). Problems that have been documented include the failure of the monitoring base to pick up a signal from the tag. Breaches have been registered when the offender is taking a bath because the cast iron of the tub may interfere with the signal (Baumer & Mendelsohn, 1992).

It could be a great inconvenience to an offender to be ever mindful of registering a breach of their curfew order just by simply taking a bath. A much-reported case of technical malfunction is cited by Nellis (1991) and Worrall (1997). Richard Hart, one of the early taggees, was woken up by the police in the middle of the night because the ankle-tag and transmitter were malfunctioning and falsely indicating that he was breaking his bail conditions. In fact his duvet had masked the signal. He was eventually returned to prison but only after his lawyer complained of his monitoring equipment failing on fifteen occasions (Worrall, 1997).

It is not beyond the realms of possibility to imagine that no matter how sophisticated and reliable the technology becomes there is always the possibility that it will be overcome by some offenders because of the concept of reciprocity (Vass, 1990). In other words, as more effort is exerted to control the movement of criminals, offenders may reciprocate by inventing techniques to overcome these restrictions. It is quite possible that offenders, who would qualify for electronic tagging such as computer hackers for instance, could invent jamming devices or transmitting devices that register the offender at home when they are not (Vass, 1990).

The only effective way of counteracting this possible development would be the installation of a system that incorporated visual evidence that the offender was at the appropriate place at the appropriate time. According to Nellis (1991) even Judge Love is alarmed by the development by the Japanese of video technology that can be installed in an offender’s home. Judge Love expresses his concern thus: “When we first developed tags, I said ‘this is not Orwellian, we’re not putting in TV monitors’. Now Japanese companies are developing television cameras for defendants’ houses. .. The next step will be small transmitters implanted under the defendants’ skin” (Love cited in Nellis, 1991: 177-78). The future could also see the large-scale introduction of electronic tracking whereby an offenders every move could be monitored with the use of global position satellite (GPS) technology (Nellis, 1991). Commentators have described this possible course of action as the beginning of an Orwellian 1984 state of affairs that could lead to even more social control (Whitfield, 2000).

This would see everyday public and private spaces turn into spaces of penal areas for some citizens (Nellis, 1991). Any of the above situations has the capacity to become just such a scenario if electronic monitoring is used as a stand-alone measure and not used in conjunction with other community sentences such as probation. With this said, the use of tagging with other measures starts to push the cost of the sentence upwards thus minimising one of the benefits that electronic monitoring was purported to bring.

Proponents of the system argue that electronic tagging can result in substantial cost savings especially when compared to building new prisons and that tagging can limit the use of incarceration to more serious and violent offenders instead of overcrowding them with petty offenders (Esteves, 1990). However, as the technology appears to be vastly underused, the cost savings benefits may be limited. The Prison Reform Trust (1990) on commenting on the early trials of tagging stated that by January 1990, only 46 defendants had been tagged on contracts which cost the taxpayer over half a million pounds.

Of these 46 offenders, 24 had breached the conditions of their bail, been arrested for further offences, or absconded. According to the National Association of Probation Officers (NAPO) after the first full year of the trials only fine defaulters and low level repeat offenders had been suggested as likely candidates for tagging. NAPO approximated that each tagged defendant cost £14,300, compared with £2,510 per year for a probation order. Four years after the trials, the technology is still used in only a fraction of cases.

Only 300 monitoring orders were made compared to 6,200 other community sentences. This equated to a paltry 1. 3% usage (Whitfield, 2000). Opponents of tagging suggest that the procedure is overly intrusive and an abuse of an individual’s human rights (Mair, 1997; Brownlee, 1998) Whilst elements of the general public may view the electronically monitored curfew order as an easy option and not particularly punitive, some commentators have argued that many purportedly non-custodial sanctions, such as electronic monitoring actually embody essential characteristics of incarceration (Esteves, 1990; Nellis, 1991).

These elements include enforced presence in a chosen space for a precise time, loss of voluntary choice in associates and activities and the loss of freedom to be present in certain locations (Hudson, 1984). It may be seen that with incarceration, the prisoner comes to expect the fact that the right to privacy is extinguished. Tagging in the home may be seen to cross a fine line between loss of privacy and the right to be left alone (Esteves, 1990; Brownlee, 1998). As a result, home-based portions of sentences are seen more and more to resemble custody with the introduction of curfews and electronic tagging.

Indeed Hudson (1993) accentuates that Foucault’s vision of a carceral culture is becoming ever more persuasive, with no longer any absolute distinction between imprisonment and community punishments. Moral objections to the use of curfews also serve to highlight the degree to which such measures impinge upon commonly valued rights of free movement and involvement within the family and elsewhere, particularly when they are enforced through electronic devices (Brownlee, 1998). Electronic monitoring is believed by some to be humiliating and degrading, especially if the worn device such as a bracelet is visible to others (Hudson, 1993).

Some offenders have objected to the use of the tag on these grounds. One woman refused to be tagged because she felt it was potentially stigmatising in her work as a landlady in a public house. Another offender cut off his tag and threw it in a pond because he claimed that it made him feel like a dog (Prison Reform Trust, 1997). There are also concerns about the public’s perception of tagging. Of particular concern are a number of vigilante attacks on offenders wearing tags, assumed to be sex offenders. In December 1995, a 22-year-old tagged man was assaulted by youths who believed that he was a convicted sex offender (ibid, 1997).

It is argued that many of the programmes in operation would be open to debate if the requirement of avoiding punishing innocent individuals was taken seriously, as house detention, home visits from the monitoring companies and the like have the ability to interfere in the lives of more people than the individual offender (Von Hirsch, 1990). Tagging can place particular pressure on the tagged offender’s family (Whitfield, 1997). The confinement of offenders at home can result in confusion over who is responsible for the offender’s care.

Baumer and Mendelsohn (1992) cite difficulties expressed by offenders and their housemates due to tagging. These included the taking over responsibility of a number of common tasks by the housemates such as shopping for groceries or getting the car repaired. The study suggested that electronic monitoring could be considerably more stressful for family members (Baumer ; Mendelsohn, 1992). Due to the close proximity of offender and family for long periods of time, confinement may also lead to aggression and frustration, which may be directed at those closest at hand (Nellis, 1991).

The practice of electronic monitoring appears at first glance to be a step in the right direction in dealing with a number of difficulties. These problems include the obvious lowering of the prison population and thus overcrowding, the ability to specifically tailor a punishment to an offender, (for example confining a shoplifter to their house during trading hours) and the fact that incarceration may make a better criminal of an offender due to association with other felons. Just as in prison though, this appears to be done at the expense of associating with virtually anyone.

Caution must be exercised, as total reliance on new technology could prove disastrous as no apparatus, no matter how sophisticated is completely infallible. The fact that new technology is being developed all the time to enable the state to keep watch over some of societies miscreants is alarming. This seems to bring Judge Loves concern of implants under the skin one step closer. The fact that offenders’ movements can be scrutinized with the use of electronic monitoring does not mean that an offender will cease offending.

Indeed Whitfield (2000) cites that tagging has no real effect on offending behaviour as offenders can continue to commit more crimes if they wish. The tag is only a monitoring device. It is the curfew order that is the sentence and if an offender desires to ignore the Order, commit more crimes or abscond, they can. Electronic monitoring as a stand-alone sanction has the ability to elicit widespread criticism from the general public as it could be seen as a cushy option that does nothing to serve the victim.

However, combined with effective support and supervision and used in combination with a more constructive court order, such as probation or a community service order, benefits for both offender and society may be reaped. An important point raised by a number of commentators (Vass, 1990; Nellis, 1991; Whitfield, 2000) warns that care must be taken with the use of electronic tagging so it does not become another expensive instrument for net widening and quickening the path to prison for those who would not normally have been sent there in the first place.