Does Electronic Home Monitoring Constitute "Imprisonment"?

In the Second District's recent decision in People v. Horsman, No. 2-09-0554, slip op. (2d Dist. January 28, 2011), the court considered, for the first time, whether "electronic home monitoring fulfilled the imprisonment requirement" of Section 6-303(d-3) of the Criminal Code. See id. at 2, 3. In Horsman, defendant was charged with felony driving while license revoked and entered an open plea of guilty. Id. at 1. At sentencing, the defendant requested that "he be placed on electronic home monitoring as a means of fulfilling the statutory requirement that he be sentenced to imprisonment." Id. at 2. The defendant argued that electronic home monitoring constituted "imprisonment" under the statute. See id. The trial court rejected the argument, and the defendant appealed. Horsman, No. 2-09-0554, slip op. at 2.

On appeal, the issue was whether electronic home monitoring could be substituted as an alternative for jail under 625 ILCS 5/6-303(d-3) (West 2006). See id. Section 5/6-303(d-3) provides that "Any person convicted of a fourth [or subsequent] violation of this Section is guilty of a Class 4 felony and must serve a minimum term of imprisonment of 180 days if the revocation was for a violation of section 11-401 of 11-501 of this Code…" Id. Defendant had "at least" four prior convictions for driving while license revoked. Id. Therefore, he had to serve a minimum imprisonment term of 180 days because he violated 11-401 or 11-501. Defendant admitted that he had to serve 180 days, but he argued that 303(d-3) allows for those 180 days to be served in home confinement. See id. Defendant argued that "'imprisonment requires that a person be in custody; electronic home monitoring is a form of custody; therefore, home electronic monitoring satisfies the 'imprisonment' condition of section 6-303(d-3)." Horsman, No. 2-09-0554, slip op. at 4.

Lacking a definition for "imprisonment" in the statute, the court began its analysis by first looking to the dictionary's definition of imprisonment," which defined it as "'the act of imprisoning or the state or begin imprisoned.'" Id. "Imprisoned" was defined as "'to put in prison: confine in a jail.'" Id. at 4-5. The court then looked at the definition of "imprisonment" from the Unified Code of Corrections, which defined it as "incarceration in a correctional institution under a sentence of imprisonment…'" Id. at 5 (quoting 730 ILCS 5/5-1-10 (West 2008). This plain meaning analysis of "imprisonment," which the State urged the court to adopt, would seem to indicate that electronic home monitoring would not constitute imprisonment because it takes place outside the confines of a jail or correctional institution. However, the court entertained the defendant's argument that, pursuant the Electronic Home Detention Law (730 ILCS 5/5-8A-3 (West 2008)), there are several instances where a defendant may be permitted to serve a portion of his sentence in electronic home detention, and that a defendant is subject to arrest and prosecution for the crime of escape if he does not comply with his home monitoring conditions. Id. at 5,6. The crime of escape, the court notes, requires that the offender "escaped from a penal institution or from the custody of an employee of a penal institution." Horsman, No. 2-09-0554, slip op. at 6 (citing 720 ILCS 5/31-6 (West 2008). The argument concludes, then, that because failure to comply with home monitoring conditions subjects an offender to escape charges, and because escape charges require that the escape must be from a penal institution, home monitoring must therefore be a penal institution and must therefore be a form of imprisonment. That's the argument, anyway.

The appellate court, though, did not buy defendant's argument. The court determined from the legislative history that legislators intended to use imprisonment as a form of punishment. See id. at 8. The court, noting the freedoms that a defendant on home monitoring would enjoy at home versus the freedoms he would relinquish in a traditional prison setting, held that electronic home monitoring was not a "punishment" that legislators sought to inflict under 6-303. See id. at 8,10. The purpose of 6-303, the court reasoned, was to punish "incorrigible offenders," like the defendant, who "prompted the legislature to enact high penalties." Id. at 9. Further, "The legislature's intent to punish these serial offender would be inconsistent with availability of the relative nonpunishment of electronic home monitoring in lieu of actual incarceration, which includes a county jail." Id. at 9,10. The trial court's judgment denying defendant home electronic monitoring in lieu of jail was therefore affirmed. Id. at 10.

The defendant's argument was not really off-the-mark. The function of both jail and home electronic monitoring is to confine the offender and limit the freedoms he would enjoy as a "free man." I believe the court erroneously reasoned that home confinement is not a punishment because an offender can "eat, sleep, make phone calls, watch television, and entertain guests at his leisure" while at home, Horsman, No. 2-09-0554, slip op. at 8, whereas he cannot in jail. Though inmates may not be able to do these things "at their leisure," inmates in modern penal institutions can still do many of these things quite freely, especially in low-security institutions like jails (vis-a-vis supermax prisons). So the difference is not that an offender in jail has no freedom while an offender on home confinement has freedom (and therefore that an inmate in jail is being punished while an offender at home is not); rather, it is only a matter of the degree to which the offender's freedom is restricted. To be sure, a jail inmate's freedom is more restricted than someone on home confinement. But the freedom of both offenders' is restricted by the boundaries of their confines. Just because someone on home confinement has less restrictions on his freedom within his home than an inmate has on his freedom in jail, does not mean that the freedom of an offender on home confinement is not restricted and that he is not confined. That is akin to saying that five years in prison is not a punishment because it is not as bad as being lethally injected. Both are punishments--just one is more severe than the other. Because freedom is restricted by being confined in one's home, that offender is therefore punished in the same way, though not to the same degree, that an inmate is punished by being sent to jail. Therefore, courts should entertain the idea of electronic home confinement, especially at time when prisons are overcrowding and state's are attempting to trim their budgets.