liibulletin-ny

People v. McNair, 87 N.Y.2D 772 (Apr. 4, 1996).

CRIMINAL LAW - SENTENCING - CONDITIONS OF PROBATION - ELECTRONIC MONITORING

ELECTRONIC MONITORING IS NOT A STATUTORILY AUTHORIZED CONDITION OF PROBATION BECAUSE IT IS NOT FUNDAMENTALLY REHABILITATIVE

[SUMMARY] | [ISSUES & DISPOSITION] | [AUTHORITIES CITED] | [COMMENTARY]

SUMMARY

After a third conviction for DWI, defendant -- an admitted alcoholic -- received a sentence of six months of incarceration, five years probation, and a one year period of electronic monitoring. Defendant appealed his sentence arguing it was beyond the County Court's power to impose. The sentence was affirmed by the Appellate Division.

ISSUE

Whether electronic monitoring for the purpose of public safety and surveillance is a statutorily authorized condition of probation.

DISPOSITION

No. Only a condition of probation that is fundamentally rehabilitative will be upheld regardless of its punitive or deterrent effects. Electronic monitoring for the purpose of public safety and surveillance is not fundamentally rehabilitative.

CASES CITED

Cited

• People v. Letterlough, 86 N.Y.2d 259 (N.Y. 1995).
• People v. Johnson, 589 N.Y.S.2d 918 (N.Y. App. Div. 1992).
• People v. Howland, 536 N.Y.S.2d 191 (N.Y. App. Div. 1988).
• People v. Ryan, 510 N.Y.S.2d 828 (N.Y. Crim. Ct. 1987).

OTHER SOURCES

Cited by Court

• N.Y. Penal Law § 65.10(2)(1) (McKinney 1987).
• N.Y. Penal Law § 60.01(2)(d) (McKinney 1987).

Related Sources

• People v. McAllister, 541 N.Y.S.2d 622 (N.Y. App. Div. 1989).
• Goldschmitt v. Florida, 490 So. 2d 123 (Fla. Dist. Ct. App. 1986).
• Mark E. Burns, Comment, Electronic Home Detention: New Sentencing Alternative Demands Uniform Standards, 18 J. Contemp L. 75 (1992).
• Jeffrey C. Filcik, Signs of The Times: Scarlet Letter Probation Conditions, 37 Wash. U. J. Urb. & Contemp. L. 291 (1990).
• Dorothy S. Kagehiro, Psycholegal Issues of Home Confinement, 34 St. Louis U. L.J. 647 (1993).

COMMENTARY

Court's Reasoning

McNair invalidates the probationary condition of electronic monitoring because it falls outside the ambit of N.Y. Penal Law § 65.10(2)(1) ("Penal Law"). Citing People v. Letterlough, the Court of Appeals reaffirmed two principles relevant to the government's condition on Defendant's probation. First, under the Penal Law a condition of probation must be fundamentally rehabilitative. Second, probationary conditions with a different fundamental goal require express legislative authority. Because the court deemed the electronic monitoring imposed on Defendant to be fundamentally deterrent or punitive and without express legislative authority, the court rejected its force as a condition on Defendant's probation.

In Letterlough, the Court of Appeals "invalidated the scarlet-letter condition of probation that required an individual convicted of driving while intoxicated to affix a fluorescent sign to the license plate of his car bearing the words, 'CONVICTED DWI.'" McNair at para. 4. The court noted that this condition was not fashioned to rehabilitate the defendant but to punish him by humiliation.

Although the electronic monitoring of Defendant would not likely humiliate him, that condition on probation "serves the goal of specific deterrence." Id. at para. 8. The court reached this conclusion by focusing on the trial court's statement addressing Defendant's concerns about the electronic monitoring condition. Id. at para. 7 ("I have to assure myself that the world is safe from your driving. The only way I could do that is to either send you to state prison or to enter an arrangement like this...."). Any rehabilitative effect of the New York's electronic monitoring of Defendant would have been "purely incidental." Id. at para. 8.

Dissent

Chief Judge Kaye, joined by Judges Bellacosa and Levine, dissented noting the Penal Law allows courts to impose on probation all conditions "reasonably related to rehabilitation." Id. at para. 16 (quoting the Penal Law). In their view, "electronic monitoring simply insures that [D]efendant complies with the other specified conditions [of the plea agreement] by keeping the probation department informed about his whereabouts." Id. at para. 23.

The dissenters distinguished McNair from Letterlough by noting that the trial court "did not intend to publicly humiliate [Defendant]" in the former case. Thus, the suggested sanction did not " overshadow[] any possible rehabilitative potential,'" id. at para. 19 (quoting Letterlough), distinguishing it from the latter case.

Implications and Unanswered Questions

While agreeing that conditions of probation must be fundamentally related to the goal of rehabilitation, the court in the present case was divided on the issue of distinguishing those conditions which are essentially punitive from those that are rehabilitative. The majority analyzed the trial court's "true aims" or motives in prescribing electronic monitoring, focusing on the statements concerning the public safety benefits of monitoring. In contrast, the dissent emphasized the independent rehabilitative benefits that supervisory mechanisms offer by insuring that the defendant complies with other specific probation conditions. How the Court of Appeals will decide in the future what constitutes a "reasonable relationship" between rehabilitation and a probation condition remains unclear.

This ambiguity is worrisome given the inherent overlap and difficulty in drawing lines between rehabilitative and punitive sanctions. In People v. McAllister, 541 N.Y.S.2d 622 (N.Y. App. Div. 1989), the defendant was convicted of sodomizing his stepdaughter and was prohibited from having contact with any of his daughters. The Appellate Division found that this condition upon defendant's probation was reasonably necessary to ensure his rehabilitation. Yet this condition served deterrent and punitive functions as well. Though N.Y. Penal Law § 65.10(2)(l) permits flexibility and discretion in sentencing, caution dictates that trial judges clearly state how probation conditions with multiple purposes specifically facilitate a defendant's rehabilitation.

Survey of Law in Other Jurisdictions

The United States Supreme Court has held that the purpose of probation is to provide a period of grace in order to aid the rehabilitation of a penitent offender. Probation affords an opportunity for reformation that actual service of the suspended sentence might make less probable. Burns v. United States, 287 U.S. 216, 220 (1932). Accordingly, most states have enacted statutes requiring that probation be related to the purpose of rehabilitation. See, e.g., Ark. Code Ann. § 5-4-303(a) (Michie 1987 & Supp. 1989); Conn. Gen. Stat. Ann. § 53a-30(a)(9) (West 1985 & Supp. 1989); Ohio Rev. Code Ann. § 2951.02(c) (Anderson 1987).

In California v. Dominguez, 64 Cal. Rptr. 290 (Cal. App. Ct. 1967), a California court established a three-part "reasonableness" test for probation allocation. "A condition of probation which (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . is invalid." Id. at 293. Several other states have adopted the Dominguez test. See, e.g., Ohio v. Livingston, 372 N.E.2d 1335, 1337 (Ohio Ct. App. 1976); South Dakota v. Means, 257 N.W.2d 595 (S.D. 1977); Rodriguez v. Florida, 378 So. 2d 7 (Fla. Dist. Ct. App. 1979).

In Florida, an appellate court upheld a trial court's requirement that a convicted drunk driver affix a bumper sticker to his car reading "CONVICTED D.U.I. --- RESTRICTED LICENSE" as a condition of probation. The court stated, "The mere requirement that a defendant display a 'scarlet letter' as part of his punishment is not necessarily offensive to the Constitution." Goldschmitt v. Florida, 490 So. 2d 123, 125 (Fla. Dist. Ct. App. 1986).

In 1988, the Idaho legislature adopted a program for electronic monitoring of drivers who received withheld judgments for violation of DUI statutes. 1988 Idaho Sess. Laws, ch. 339, § 1.

Relevant Law Review Articles and Treatises

Given the relatively recent development and implementation of electronic monitoring, scholars have treated the subject with an eye toward further study. The opinions in McNair cite two representative articles on the topic of the growth and future use of electronic monitoring. One scholar, cited by the majority, discusses both the benefits and potential risks associated with electronic monitoring. Dorothy S. Kagehiro, Psycholegal Issues of Home Confinement, 37 St. Louis U. L.J. 647 (1993). Kagehiro acknowledges numerous possible benefits, including lowered jail and prison populations, subsequent lowered costs of running correctional facilities, and the ability of confinees to continue employment and support their families. At the same time, she warns that the extension of governmental control into the lives of both confinees and private citizens who are not defendants (i.e., co-residents) should be weighed against any possible benefits of home monitoring programs. Thus, the interests of the government in rehabilitating and punishing the wrongdoer, as well as protecting society, may not always outweigh the privacy and liberty interests of the individuals affected by a home monitoring program. Moreover, Kagehiro advocates more thorough examination of existing electronic monitoring programs, while they are still relatively modest in size and more easily altered, in order to deal with possible infringement of privacy and liberty interests.

Another scholar, cited by the dissent, also acknowledges the potential benefits of home electronic monitoring as well as the current and future problems that may arise as a result of the lack of uniform standards in applying electronic monitoring programs. Mark E. Burns, Comment, Electronic Home Detention: New Sentencing Alternative Demands Uniform Standards, 18 J. Contemp. L. 75 (1992). Burns provides a helpful starting point by including a draft of a proposed "Electronic Home Detention Act of 1992." This draft is designed to provide an overview of more uniform standards that could guide the use of monitoring technology, help to ensure a higher level of public safety and offender rehabilitation, limit litigation of monitoring sentences, and reduce the more intrusive infringements on privacy rights. Moreover, Burns agrees with Kagehiro's view that electronic monitoring, although not inherently legal or illegal, should be carefully studied before programs become too large to be responsive to helpful reforms.

Prepared By:

• Adam R. Fox, '96
• H. Marlow Green, '97
• Robert D. Grauer, '96
• Edward M. Lilly, '96
• Marc E. Mangum, '97
• Anne R. Myers, '97
• Michael A. Peil, '97
• Mary E. Windham, '97