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.

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.

Tech­nic­al Equip­ment:

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

Cog­nit­ive In­terest:

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.

Fin­ances:

The sci­entif­ic study is fin­an­cially sup­por­ted by the Hes­si­an Min­istry of Justice since they do award a grant.