Marc Dreier, the New York lawyer charged with defrauding his investors out of $400 million, failed to make bail last Thursday. He will await trial in jail rather than at home, because he could not meet the conditions set by Judge Douglas Eaton—namely, a $20 million bond and at least four "responsible" co-signers. * By contrast, Bernie Madoff, who confessed to a $50 billion Ponzi scheme, was released on $10 million bail and has been living under house arrest in his Manhattan penthouse since December. Who qualifies for house arrest?
Those unlikely to break the terms of their confinement. Judges may impose house arrest in lieu of incarceration before trial (as a condition of bail) or as a sentence. Prior to sentencing, judges are chiefly concerned with the risk of flight—determined based on criminal record, a person's ties to the community (does he have a family to support?), and his visibility (will someone notice if he tries to fly the coop?). Judges considering house arrest instead of jail time are mostly concerned with the likelihood of recidivism. While it's not common for convicts to serve out an entire sentence at home, nonviolent offenders may get away with a jail-free punishment if they have a clean rap sheet, a steady employment history, and no gang affiliation. Parole commissions may also impose home confinement instead of releasing an offender after he's served a prison sentence. This option is especially common for sex offenders.
There are several different types of home confinement. It's rare for an offender to stay at home 24 hours a day. Some offenders get "curfew," which means they only have to be at home during evening hours. Others can go to work or certain pre-approved activities like medical visits, training programs, or school. To make sure the defendants or offenders abide by the terms of their confinement, the court orders them to wear electronic monitoring devices. Courts (or whatever agency is responsible for the offender) frequently outsource the surveillance of these devices to private companies, who assign as many as 500 cases per employee. (The employees just stare at a computer screen, then call a parole officer if a monitoring device trips an alarm.) In high-profile situations (like Madoff's) or for high-risk criminals (like sex offenders), this caseload can go down to eight or 10 per monitoring employee.
Judges often opt for home confinement when a prison term seems too harsh or parole too lenient. This form of punishment is also economical: It costs less to incarcerate someone at home than in a penitentiary. On average, it costs nearly $26,000 a year to lock up someone in prison, and that's just counting food, electricity, and guards' salaries, not the price associated with building or expanding prisons. That makes home confinement, at about $6,000 a year—for the electronic monitoring device, the people who stare at a screen, and parole officers—a bargain. Furthermore, offenders are often expected to defray the cost of their own confinements. An offender's contribution is set on a sliding scale, based on his ability to pay.
Judges have imposed sentences of home confinement instead of parole since as far back as the 1900s. It didn't become a widespread alternative to imprisonment, however, until electronic monitoring devices made it inexpensive and easy to manage. In 1977, Judge Jack Love of Albuquerque, N.M., read a Spider-Man comic strip wherein a villain tags Spidey with a surveillance device and asked an electronics expert to manufacture a similar gadget for use with criminals. Six years later, in 1983, the judge issued the first-ever court sentence of house arrest with an electronic bracelet. (Similar technology had been used in Boston in the '60s and '70s to track parolees, research volunteers, and mental patients.) By 1988, there were approximately 2,300 monitoring devices in use. By 1998, that number had increased to 95,000.
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Explainer thanks Joan Petersilia of the University of California, Irvine.