Motivated by experiences in the field of electronic monitoring in the anglo-american jurisdictions since the 1980s, electronic monitoring has become subject to controversial discussions within legal policy in Germany as well. Whereas its supporters consider electronic monitoring as a reasonable, cost-saving, modern and humanitarian type of arrest, others are concerned that electronic monitoring could be abused to implement a system of complete and total surveillance comparable to a future scenario as described by George Orwell in his novel “1984”. In turn some further discerning voices argue, electronic monitoring cannot be considered as a sensible sentence to the delinquent, but rather as a kind of “holiday at home”. Again others see human dignity threatened by electronic monitoring due to significant interference (violation of constitutional rights) with fundamental rights of the individual. The project follows directly on from preceding research (Evaluation eines Modellprojekts zum Einsatz der elektronischen Fußfessel (Hessen)) concerning the pilot project phase and seeks to investigate and evaluate the nation wide implementation of this new penal sanction.
Department: Criminology Project category: Dissertation Status of project: Completed Research program (Criminology): Criminal Procedure and Sanctions in Transition Project languages: German Organizational status: Individual research project Project duration: Project start: 2003
Project end: 2018
I. Subject of Evaluation
The Hessian Ministry of Justice has been launching a pilot project on electronic monitoring in the court district of Frankfurt am Main since may 2000. Subsequent to this pilot project, the implementation of electronic monitoring shall also be extended to other court districts in the Federal Sate of Hesse. The Max-Planck-Institute for Foreign and International Criminal Law in Freiburg scientifically advises and evaluates the process of extension of the implementation as outlined before.
Electronic monitoring is to be imposed by the courts alternatively to imprisonment in order to relieve the penal system and thus to reduce costs relating thereto. Throughout the term in which the delinquent (hereinafter called “participant”) is subject to electronic monitoring, therapeutical support shall be rendered to him in order to promote and to stabilise his self control and his lifestyle as well as to improve his personal skills supporting him not to relapse and to lay the foundations for a suspension of a prison sentence. Whensoever electronic monitoring is imposed as a probation order, the mandatory legal aim of such order is to improve the rehabilitation of delinquents. In this regard, it is assumed that the imposition of a weekly binding timetable helps the delinquent to practise a well-ordered and sensible lifestyle. Moreover, electronic monitoring is particularly suitable to reduce the risk of a new delinquency as it leads to a reduction of opportunities in this respect. Hence, electronic monitoring is regarded as to promote the suspension of sentences as well as to reduce the number of revocations of probation.
Within the legal system of Germany electronic monitoring can be imposed as:
- a probation order in case of suspended prison sentence (§§ 56 ff. StGB)
- a probation order to prevent sentencing in case of a breach of a former probation order (§§ 56 ff. StGB)
- a probation order of parole after having served half or two-third of a prison sentence (§§ 57 f. StGB)
- a probation order in case of a sentence of supervision (§§ 68 ff. StGB)
- an order containing suspension of pre-trial detention (§ 116 StPO)
- a probation order in case pardon has lead to suspension of prison sentence (§ 19 Hessian Ordinance on Pardon)
In each of the Hessian court districts the respective responsibility for the implementation of electronic monitoring and the coordination of the day-to-day business within the project is allocated to a specific social worker in the capacity as a project delegate.
On request by a judge, prosecutor or defence counsel involved in a potentially appropriate matter, the team members assess whether the potential probationer meets the requirements for a participation in the electronic monitoring project. Within seven days as of this request the responsible social worker submits a report to the applicant and the court which inter alia includes a non-binding recommendation as to whether or not electronic monitoring actually should be imposed on the respective person.
The competent judge or as the case may be the board of pardon decides on a legal basis either to impose electronic monitoring or any alternative order or sentence as well as on the respective term of such.
After such decision has become final and binding, the necessary technical equipment shall be installed in the probationer`s domicile. Thenceforth, the absence respectively the attendance of the participant in the domicile and thus the compliance with the aforementioned binding timetable can and will be monitored and registered. The participant receives support by a particular probation officer during the entire period in which he takes part in the project.
During his participation in the programme, the monitored participant has to wear a permanently transmitting anklet (“transmitter”). A receiver terminal connected with the telephone line is installed in the domicile of the participant receiving signals from the transmitter worn by the participant and forwarding those signals via telephone line to the Hessian Central for Data Processing (“Hessische Zentrale für Datenverarbeitung”, hereinafter HZD). Any attempts by the participant to manipulate the transmitter or the responder as well as breaches of the provisions of the time table will be registered and transmitted to the observation centre. The HZD will directly forward the respective information to the probation officer in charge to enable him to react immediately, particularly to contact the participant and clarify the incident.
II. Corollary Scientific Research
The evaluation studies as discribed above shall analyse and investigate the application of law regarding the implementation process as well as the efficiency of electronic monitoring with respect to the aforementioned goals, particularly its achievements in the field of rehabilitation.
Contrary to the previous research by the Max-Planck-Institute whose subject was restricted to analyse and advise the implementation of electronic monitoring within the pilot project under experimental conditions, this current evaluation studies relate primarily to its statewide expansion under consideration of the actual legal situation.
Thereby, research shall focus on the potential rank of electronic monitoring as an option to evade imprisonment amongst other available sentences in accordance with the applicable German penal law. Furthermore, the actual status concerning reformation efforts shall be assessed. Studies in the field of sociology of law shall ascertain adequacy, effectiveness, process, result and benefit of electronic monitoring within this framework. In particular,it is intended to investigate to which extent the exercise of electronic monitoring meets the set goals and its compliance with applicable legal provisions.
Effectiveness and consequences of electronic monitoring shall be assessed by way of analysing the structure of implementation. Thus, this analysis focuses in particular (i) on the specifics of electronic monitoring as sentence within German Penal Law (ii) on the interaction within the responsible bodies involved in the implementation process and (iii) on the interaction between the responsible officials and the participants as these aforementioned issues have to be considered as crucial for achieving the set goals as outlined above. In this regard, the cognitive interest of the analysis is not restricted to assess whether or not the implementation of electronic monitoring succeeds. Rather it is also intended to understand the dynamics, the specifics and the interaction between the key factors of the implementation process. Therefore, the analysis shall be rendered by way of a descriptive logging and an extensive explanation of the project in order to allow a sophisticated reproduction of the process of implementation.
Methodology of evaluation:
The documentation as well as the analysis of the implementation process shall be rendered by way of systematic application of quantitative and qualitative evaluation methods of sociology of law.
The study particularly bases on interviews with delinquents, responsible bodies and responsible officials involved in the implementation process.
Interviews with the involved probation officers shall shed light on the process of implementation and its problems as well as on its potential and limits.
Furthermore, interviews with the participants and the persons sharing the domicile with them as well as the examination of the respective case files shall assess the individual performance and the personal consequences and problems regarding the programme.
Finally, interviews with responsible officials of the Hessian Ministry of Justice shall provide information on the development of the implementation process and the Ministry’ s strategies and intentions.
Additionally, interviews with officials of the Hessian Probation Office (“Hessische Bewährungshilfe”) shall provide further information on the probation officers’ attitude towards the process of implementation of electronic monitoring and their appraisal.
Finally, interviews with judges involved shall offer information concerning the acceptance and experiences with electronic monitoring from the courts’ perspective.
The assessment of the effectiveness of electronic monitoring as legal sentence carried out by this evaluation study is made up of several parts whereas each of these partial studies shall focus on the impact of electronic monitoring on the rehabilitation of the participants.
The scientific study is financially supported by the Hessian Ministry of Justice since they do award a grant.