A Guy’s View: House arrest should be a sentencing option
“I think enslavement has evolved to what may seem appropriate to this day’s generation. Modern enslavement is imprisonment.” Aldis Hodge.
The news broke recently that two members of the Trump campaign team, Paul Manafort and Rick Gates, were charged with multiple offences and placed under house arrest. House arrest is a tool which has not been used in our judicial system as part of the management of our prison population, but which deserves some serious consideration.
We commonly use curfew as an option, but house arrest is more stringent than curfew. The perspective of the Canadian court separates the two for us. Note these words of Justice Veale of the Supreme Court of the Yukon Territory in R. v. Eby and Goodman:
“... the distinction between house arrest and being placed under curfew. There is a significant difference. House arrest is an order that requires the offender to be, in effect, incarcerated in their own home, except for limited circumstances with the permission of the Court or the sentence supervisor.
“A curfew, on the other hand, gives the offender the freedom to move about in the community at their own discretion so long as they comply with the general conditions of their sentence and return to their residence for the hours of curfew, typically 9:00 p.m. to 7:00 a.m. when many citizens are in their homes in any event.”
In our system, when bail is granted it may be accompanied by a number of conditions. These conditions are usually designed to meet the requirements of the state to ensure that the person being granted bail turns up for court when the designated date is set. It is not a case of one size fits all.
Bail is an entitlement. A person is not guilty because he has been charged with a crime. The state has an obligation to prove what it alleges against an accused person. Until this is done, that person is innocent of any crime.
When it is convenient for some of us, we wish that the judiciary would use the withholding of bail as a punishment. It was shocking to listen to persons who practice before the criminal bar argue that an accused person should not be granted bail without reference to the factors that are usually taken into account when bail applications are made, simply because of who this person was. Some of these persons make all kinds so spurious arguments before the courts in order to have their dyed-in-the-wool criminal clients released on bail, on the basis that those persons are innocent until proved guilty.
Our desire for revenge and to see persons treated harshly may lead us to the view that a person who is awaiting trial should be remanded in custody if the circumstances of his case do not permit ordinary bail. Consideration should be given, however, to the possibility of house arrest as another option.
There is common technology that may be used to monitor the movement of a person who is under house arrest, but even in the absence of such technology, this option may still be exercised. A person so detained may be subject to visits by police patrols at random and if seen away from his premises may be treated like a curfew breaker and taken into custody.
A simple monitoring approach may be to have the person who is under house arrest report to a police station or a probation or monitoring officer from a particular landline telephone at prescribed times. The reporting person may also be required to answer that telephone whenever his monitoring officer calls.
A sentencing court may also require that the house in which the accused or convicted person is detained be off limits to particular persons or to assemblies of more than a set number of people during the period of house arrest. This, of course, would not include other persons who live at the same residence.
House arrest before conviction may be used for persons whose alleged offences are serious and who should be kept from the general population, but whose circumstances do not rise to the level of requiring remand. There may be many cases that fit this bill. This solution would reduce the prison population, especially since it has been reported that a large percentage of the persons in residence at Her Majesty’s Prisons are on remand.
House arrest should not be seen only as a pre-conviction option. It is a suitable option even for persons who have been convicted of some crimes. In places where this sentencing option is used, it is regarded as suitable for offenders where probation may be less restrictive than what is desirable for the offender, but incarceration in a prison seems either unnecessary or beyond the punishment that corresponds to the offence.
This sentence provides flexibility, depending on the nature of the facts before the court. The court can decide what activities, if any, an offender would be allowed to attend. For example, in the cases of Manafort and Gates, they are allowed to leave their homes only to meet with their attorneys, appear in court or for medical or religious purposes.
It is worthy of note that both of these men were regarded as flight risks, and yet they were not confined to a prison. The imposition of ten million and five million dollars bonds respectively, seizing their passports as well as the monitoring requirements were seen as satisfactory safeguards.
In some cases, a detained person is allowed to leave his house only in the company of a surety. This may sometimes be appropriate especially since it is the surety who stands to lose financially if the conditions of the house arrest are breached.
Some greater light may be shed on this issue by examining what benefits there are to the society, with or without this option. What does it cost the society to deal with offenders who could be properly dealt with without imprisonment? I would suggest, however, that the implications are not just financial.
I choose to borrow a quote from Foster Friess to help me introduce the social implications of imprisonment:
“‘Hannity’ had a guy on that said, ‘I fathered 20 kids by 14 mothers.’ That is (a) cultural issue which has demeaned our society and has caused our society dearly in terms of imprisonment. Who’s going to be the fathers to those children? Who’s going to pay child support?”
One of the conditions of house detention is allowing the offender to work. Of course, this may not be an option in all cases, but it is quite reasonable in appropriate cases. There are many men who served time in prison for not being able to pay child support. Did these detentions help their unsupported children? Would not an order that the defaulting parent keep a steady job, remain at home after working hours and have the determined level of support deducted from his salary at source be more sensible?
Home detention is imminently sensible in appropriate cases and should be added to the sentencing options available to our courts. It could save the state money as well as protect some offenders from the hardened prison population.