Brief Summary of Engrossed Bill

Redefines home detention to require presence in a private residence 24 hours a day, unless otherwise authorized by the court, and subject to electronic monitoring.
Defines electronic monitoring as tracking the location of a person through technology capable of determining a person's presence or absence at a particular location.
Prohibits the use of home detention for those offenders who have a prior history of knowingly violating the terms of a home detention program.
Requires a supervising agency to establish terms and conditions for electronic monitoring for each individual subject to electronic monitoring and communicate the terms to the monitoring agency.
Requires monitoring agencies to notify the supervising agency of certain violations of electronic monitoring.
Requires private monitoring agencies to have policies for contingency plans and conflicts of interest and meet background check requirements.
Subjects private monitoring agencies to civil penalties for noncompliance with the act.
Requires the courts to notify the Administrative Office of the Courts (AOC) when discontinuing or resuming use of a monitoring agency and requires the AOC to transmit this notice to courts statewide.
Prohibits a monitoring agency from monitoring a defendant who is currently awaiting trial for a violent or sex offense unless the defendant's release before trial is secured with a payment of bail.
Prohibits an award of credit toward a sentence for time spent on pretrial electronic monitoring if an offender is convicted of certain offenses.
Provides that a person who knowingly violates the terms of electronic monitoring is guilty of Escape in the third degree.

Background:

An offender may be ordered by a court, as an alternative to incarceration, to home detention. Home detention is a program of partial confinement available to an offender wherein the offender is confined in a private residence subject to electronic surveillance. Alternatively, an offender may be ordered by the Department of Corrections (DOC) to home detention, as part of the DOC's parenting program.

Offenders convicted of certain crimes are ineligible for home detention unless imposed as partial confinement under the DOC's parenting program: a violent offense, a sex offense, a drug offense, Reckless Burning in the first or second degree, Assault in the third degree, Assault of a Child in the third degree, Unlawful Imprisonment, or Harassment. Offenders convicted of Burglary, Possession of a Controlled Substance, Forged Prescription of a Controlled Substance, or Taking a Motor Vehicle are eligible for home detention if they meet certain criteria.

Participation in a home detention program is conditioned upon the offender: (1) obtaining and maintaining employment; attending a course of study at regular hours or performing parental duties to children normally in his or her custody; (2) abiding by the rules of the home detention program; and (3) compliance with court-ordered legal financial obligations.

Court Requirements and Pretrial Release. When a person charged with an offense appears before a judicial officer, the judicial officer must issue an order that, pending trial, the person be released on recognizance, released on conditions, or remain detained. The court's order for conditional release may include the following conditions:

placing a defendant on a pretrial release program;
restricting travel, association, or place of abode;
requiring compliance with a curfew, work release, or electronic monitoring;
prohibiting contact with particular persons or places;
prohibiting possession of dangerous weapons or firearms;
prohibiting consumption of alcohol or non-prescribed drugs;
prohibiting operation of a motor vehicle not equipped with ignition interlock;
reporting regularly to court supervision; and
prohibiting violations of the criminal law.

Escape in the Third Degree. A person commits the crime of Escape in the third degree when the person escapes from custody. Custody means "restraint pursuant to a lawful arrest or an order of a court, or any period on a work crew." Escape in the third degree is a gross misdemeanor, punishable by up to 364 days in jail, and a $5,000 fine.

A misdemeanor is punishable by up to 90 days in jail and a $1,000 fine. A gross misdemeanor is punishable by up to 364 days in jail and a $5000 fine. A class C felony is punishable by up to five years in prison and a $10,000 fine.

Summary of Engrossed Bill:

Home detention is defined as a program of partial confinement available to offenders wherein the offender is confined in a private residence 24 hours a day, unless an absence from the residence is authorized by the supervising agency, and the offender is subject to electronic monitoring. Home detention is a subset of electronic monitoring. Home detention may not be imposed for an offender if the sentencing court finds that the offender has previously and knowingly violated the terms of a home detention program and the violation(s) were not technical, minor, or non-substantive.

"Electronic monitoring" is defined as tracking the location of an individual pretrial or post-trial through the use of technology capable of determining the monitored person's location. Electronic monitoring is included in the definition of partial confinement. This definition of electronic monitoring is applicable in the following contexts:

when imposed by the department of corrections pursuant to its discretion to monitor those convicted of sex offenses;
when imposed by the court as part of a domestic violence protection order or after conviction for violation of such orders; and
when imposed as a condition of release in a criminal case.

Supervising Agency Requirements. A supervising agency is defined as a public entity that authorized a home detention or home monitoring program and has jurisdiction over a monitored individual. A monitoring agency may be a supervising agency. A supervising agency must:

establish terms and conditions of electronic monitoring for each individual subject to the electronic monitoring under the agency's jurisdiction;
communicate the terms and conditions to the monitoring agency; and
establish protocols for when and how a monitoring agency must notify the supervising agency when a violation of the terms and conditions occurs.

Monitoring Agency Requirements. Home detention programs must be administered by a monitoring agency that meets the following requirements:

complies with the terms and conditions set by the supervising agency;
provides notification within 24 hours to the court or other supervising agency when a monitoring agency discovers that a monitored individual is unaccounted for, or beyond an approved location for 24 consecutive hours;
establishes geographic boundaries consistent with court-ordered activities and report substantive violations of those boundaries;
verifies the location of offenders through in-person contact on a random basis and at least once per month; and
reports to the supervising agency any known violation of the law or court-ordered condition.

Private monitoring agencies must meet the following additional requirements:

has a detailed contingency plan for events such as power outages, malfunction of equipment, fires, and floods;
prohibits conflicts of interest between employees and monitored individuals;
is not owned by, nor employs, any person convicted of a felony within the past four years; and
obtains background checks for every owner and employee.

A private monitoring agency that fails to comply with the requirements may be subject to a $1,000 fine per violation, as determined by a court or court administrator.

A monitoring agency may not agree to monitor a defendant who is currently awaiting trial for a violent or sex offense unless the defendant's release was secured with a payment of bail.

Court Requirements. A court that receives notice of a violation of the terms of a home detention or electronic monitoring program must maintain a record of violations in the court file. If a court decides to discontinue or resume use of a monitoring agency, the court must notify the Administrative Office of the Courts (AOC), which must then notify all superior and district courts of the decision. The AOC is required to create a pattern form order for the court to use when ordering a person to comply with a home detention program.

A sentencing court may not give credit for time an offender spent electronic monitoring prior to sentencing if the offender was ultimately convicted for one of the following offenses:

a violent offense;
any sex offense;
any drug offense;
Reckless Burning in the first or second degree;
Assault in the third degree;
Assault of a Child in the third degree;
Unlawful Imprisonment; or
Harassment.

Escape in the Third Degree. The crime of Escape in third degree is modified to include knowing violations of an electronic monitoring program. Escape in the third degree is a misdemeanor on the first offense, a gross misdemeanor on the second offense, and a class C felony on the third or subsequent offense.

Staff Summary of Public Testimony (Public Safety):

(In support) If someone is on electronic home monitoring, the public expects that the person is at home and being monitored. Neither of these things are true in implementation. This bill seeks to put in place standards. It creates a definition for home monitoring and specifies what technology needs to be used. A monitored person must be at home unless approved by the court. There needs to be penalties if electronic home monitoring is violated. The state Constitution has liberal language that all defendants are entitled to reasonable bail. However, those who cannot make bail should not be released on home monitoring. There have been dangerous situations where individuals on home monitoring have committed serious crimes.

(In support with concerns) This is a huge step in the right direction. There are a couple of concerns. Verifying the location of the offenders through in-person contact will increase the cost of home monitoring significantly; it would require companies to increase the cost and the number of company employees. With global positioning system (GPS) technology, the monitoring agencies know where the monitored person is without having to see them in person.

(With concerns) This is a very comprehensive bill. There are a number of suggested amendments. Most courts that are authorizing home monitoring order a variety of conditions that require the person to be away from the home. Home monitoring is not perfect and it never will be. Often times the choice for a defendant is making bail with monitoring or making bail without monitoring. Bail with monitoring is preferred. No one should presume that GPS monitoring means that a person is being monitored in real time. Real-time monitoring is cost prohibitive. This bill is a good effort to shore up difficulties with home monitoring. A system that inspires confidence is good for the defense. There are concerns with certain sections, section 6 would severely limit the number of people who would be eligible for home monitoring. Many defendants cannot post any amount of bail and house arrest is the only alternative to detention. The bail system is ineffective. Section 7 limits who would receive credit for time that was served on home monitoring. This is an equal protection issue with limiting credit for time served in this context.

(Opposed) None.