CRIMINAL LAW - SENTENCING - CONDITIONS OF PROBATION - ELECTRONIC MONITORING
ELECTRONIC MONITORING IS NOT A STATUTORILY AUTHORIZED CONDITION OF PROBATION
BECAUSE IT IS NOT FUNDAMENTALLY REHABILITATIVE
] | [ISSUES & DISPOSITION
| [AUTHORITIES CITED
] | [COMMENTARY
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.
Whether electronic monitoring for the purpose of public safety and surveillance
is a statutorily authorized condition of probation.
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
Cited by Court
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).
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
, 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.
Chief Judge Kaye, joined by Judges Bellacosa and Levine, dissented noting
the Penal Law allows courts to impose on probation all conditions "reasonably
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
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
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.
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