Guest post/question: "Will home confinement become a more (or less) attractive alternative to incarceration?"
A thoughtful and insightful colleague wrote to me this morning to pose the question in the title of this post. I asked for a fuller write up of the query for posting, and here it is:
Section 5F1.2 of the federal sentencing guidelines defines “home detention” this way —
"Home detention” means a program of confinement and supervision that restricts the defendant to his place of residence continuously, except for authorized absences, enforced by appropriate means of surveillance by the probation office. When an order of home detention is imposed, the defendant is required to be in his place of residence at all times except for approved absences for gainful employment, community service, religious services, medical care, educational or training programs, and such other times as may be specifically authorized. Electronic monitoring is an appropriate means of surveillance for home detention. However, alternative means of surveillance may be used if appropriate.
For most of us, the last two weeks have genuinely been a period of home detention. For me, I’ve been supervised in my confinement not by a probation officer, but my wife and daughters, who, should I venture out too far or too long, are quick to send me an electronic message to return home. [I think this meets the term “alternative means of surveillance” as used in 5F1.2.] And of course, I am not approved for absences for gainful employment (telework), religious services (cancelled), or educational or training programs (Zoom).
Later today, the House of Representatives will pass legislation that will expand the use of home confinement for federal prisoners to address the current COVID crisis, and Attorney General Barr has already issued a directive to the Bureau of Prisons to expand its use (see earlier posts here and here). Many of us for years have advocated for the expanded use of home confinement and electronic monitoring as alternatives to imprisonment and to reduce the nation’s reliance on imprisonment for punishing convicted offenders. I’m not sure, though, now that we all have experienced home confinement, whether it will be a more — or less— attractive alternative to incarceration.
Doug — What do you think?
Readers — What do you think?
My first-cut answer to this great question is an answer I have been trotting out a lot these days: "Who the heck knows, but I am eager to find out."
I am certain many people are not enjoying their personal "home confinement," and will be finding it more and more burdensome in the weeks to come. But I also know that personal "home confinement" still likely would be, and surely should be, seen as much less burdensome than actually being incarcerated. (A recent Marshall Project speaks to this reality: "No, Your Coronavirus Quarantine Is Not Just Like Being in Prison.") I fear that many persons may be inclined to say, after the pandemic resolves, some version of "Criminals should always face a harder experience than I did during COVID."
That all said, so much of the reality of criminal justice administration can be shaped by economics, especially at the state level where incarceration costs take up a much larger percentage of overall state budgets. Home confinement surely will always be much cheaper than imprisonment, and finding cheaper punishments may become extremely important (for states in particular) if we are facing a long recession that makes limited state resources even more scarce.
Last but certainly not least, if some states moved a significant number of current prisoners into home confinement while others do not, we will be starting an interesting and important "natural experiment" on the efficacy of home confinement relative to imprisonment. Though this "natural experiment" will not be able to give us conclusive data on whether home confinement serves public safety as well as imprisonment, advocacy for decarceration are likely to highlight this experience if we do not see a huge spike in crime in those states that have decarcerated more.
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