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58
Kriminologijos studijos ISSN 2351-6097 eISSN 2538-8754
2018, vol. 6, pp. 58–77 DOI: https://doi.org/10.15388/CrimLithuan.2018.6.3
Electronic Monitoring in Europe –
a Panacea for Reforming Criminal
Sanctions Systems? A Critical Review
Frieder Dünkel
Prof. em. dr., Universität Greifswald, Rechts- und Staatswissenschaliche Fakultät,
Lehrstuhl für Kriminologie
duenkel@uni-greifswald.de
Abstract. First experiments with electronic monitoring emerged in Europe in the early
1990s. Within 15 years, the majority of countries in Europe reported having introduced
electronic monitoring at least as pilot projects. e amazing dynamic rise of electronic
monitoring in Europe may be explained by the commercial interests that become
evident when looking at the activities of private companies selling the technique.
Although electronic monitoring seems to have expanded in many countries, one has
to realize its marginal role within the European sanctions systems compared to other
sentencing or release options. On average, only about 3% of all probationary supervised
persons were under electronic monitoring at the end of 2013. is article deals with
questions regarding the impact of electronic monitoring on prison population rates
and reduced reoending, with net-widening eects and costs, essential rehabilitative
support, human rights-based perspectives and the general (non)sense of electronic
monitoring.
Keywords: electronic monitoring, punishment, international standards, human rights,
criminal justice.
1. Introduction
e question of how to rehabilitate, control and supervise oenders eec-
tively in a community has been of major importance since the late 19th century,
Vilnius University Press
Received: 9/7/2018. Accepted: 10/8/2018
Copyright © 2018 Frieder Dünkel. Published by Vilnius University Press
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Frieder Dünkel. Electronic Monitoring in Europe – a Panacea for Reforming Criminal Sanctions Systems?
59
when the search for alternatives to imprisonment caught the interest of crime
policymakers and the reformers of the criminal sanctions system. e German
Franz von Liszt inuenced the debate by particularly criticizing short-term
imprisonment. In consequence, during the rst half of the 20th century, nes
and probation or suspended prison sentences were found as an answer to cope
with increasing prison populations. e demand for more eective control of
oenders in the community was the side eect (Germ. Begleitmusik) of a puni-
tive turn in the 1980s and 1990s, characterized by Garland (2001) as the “cul-
ture of control.” e latest development in this direction was possible by new
surveillance techniques, rst in the form of radio frequency-based devices,
and more recently by using the GPS surveillance technique (see Haverkamp
2014). is area, being one of the most dynamic elds of criminal justice, de-
serves a critical review not only under the headline of modern penalty but
also with regards to criminological evidence on what works and how; tradition
penal values, such as proportionality and human dignity, must be assessed in
view of this as well. e present paper is based on some of the results of an EU-
funded project on the “Creativity and Eectiveness in the Use of Electronic
Monitoring as an Alternative to Imprisonment in EU Member States” (Grant
No. JUST/2013/JPEN/AG/4510) covering Belgium, England/Wales, Germany,
the Netherlands and Scotland (see Hucklesby et al. 2016) as well as on a larger
European comparative project covering 12 additional countries looking not
only at the crime policy developments but the human rights-based perspec-
tives concerning electronic monitoring as well (see Dünkel, iele, Treig 2017).
2. The rise of electronic monitoring
in European sanctions systems
First experiments with electronic monitoring (EM) in Europe emerged in
the early 1990s in England and Wales, followed by small-scaled projects in
Sweden and the Netherlands (see Nellis 2014). Within 15 years, a majority of
countries in Europe (27) reported having introduced EM at least as pilot pro-
jects, whereas Nellis (2014, p.490) found only 12 countries that had made no
eorts yet to introduce it (Italy, Greece and Lithuania amongst them), which,
in the meantime, have also had some small projects or experiences in the eld
(see Dünkel, iele, Treig 2017). e Council of Europe’s SPACE II-statistics
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– although not always complete or accurate because of the reporting errors
by some member states – indicate that EM does not exist in only 12 out of 47
jurisdictions (see Aebi, Chopin 2016, p. 18 f.). However, again, Greece and
Italy are mentioned as countries where EM is not existing as a disposal, which
is wrong.
Looking at numbers of EM-cases on a given day or per year seems much
more dicult, as the SPACE-statistics report only about 21 out of 35 “user”-
countries. Again, we can observe how the shortcomings of statistical data
become evident, if, for example, 271 cases dated to December 31, 2014 are
included in the list of counted instances, whereas our national report in the
abovementioned EU-project revealed a little less than 14 000 cases (probably
due to non-reported cases of stand-alone EM-measures outside the probation
service). Renzema and Mayo-Wilson (2005, p. 215) reported an estimated
number of 100 000 persons electronically supervised in the US for 2003 and a
daily population of about 9 000 in Europe, of the 77% in the UK. Since then, a
further considerable rise of EM has taken place.
is amazing dynamic rise of EM in Europe may be explained by the com-
mercial interests that become evident when looking at the activities of private
companies selling the technology required for conducting EM. Insofar a new
quality has emerged in the penal law (similar to the rise of the prison industry
by privatizing imprisonment in the US) that endangers the role of the state.
Traditionally, the state/government formulates the aims of punishments and
the ways to enforce them. In some areas, private entrepreneurs have come into
“the game,” for example, in juvenile welfare and justice. At least in the conti-
nental European jurisdictions, these “players” are non-prot organizations (of-
ten nanced mainly by the communities). is changes with the involvement
of the prot-oriented private sector, as the advertisement of new sanctions and
measures is now proactively made by private companies, which also impose
pressure on governments. Lithuania is a recent example of that (see Sakalaus-
kas in Dünkel, iele, Treig 2017): the government rented a certain number of
devices and had to pay a considerable amount of funds regardless of how much
use was made of these devices by the judges. us, in the rst years of use, a
case under EM was more expensive than a place in prison. e government
had to advertise a greater use of EM in order to lower the costs-per-case of EM.
A similar reluctance of the judiciary and a low acceptance of EM can be
Frieder Dünkel. Electronic Monitoring in Europe – a Panacea for Reforming Criminal Sanctions Systems?
61
seen in Greece, where again the government has attempted to inuence the
judges to use EM more extensively (Pitsela in Dünkel, iele, Treig 2017).
Although EM seems to expand in many countries, one has to realize its
marginal role within the European sanctions systems compared to other sen-
tencing or release options. On average, only about 3% of all probationary su-
pervised persons were – according to the SPACE-statistics – under EM at the
end of 2013 (see Figure 1). Even when considering high underreporting rates
in some countries, it becomes clear that the amount of public and governmen-
tal interest in EM contrasts very strongly to its actual importance in practice.
Again, this may only be explained by the pressure and publicity exercised by
private companies selling the technology and services of EM.
Reference: Aebi, M. F. & Chopin, J. (2014). SPACE II – Council of Europe Annual Penal Statisti-
cs: Space II survey 2013. Strasbourg: Council of Europe, Table 1,1, p. 17–18.
FIGURE 1. e proportion of electronic monitoring on all persons serving commu-
nity sanctions and measures (%, stock on December 31, 2013)
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3. Aims and target groups of electronic monitoring –
diverse approaches in the European context
e somewhat “victory” of EM in the “penal eld” (Page 2013) has much
to do with the emergence of surveillance technologies in general (Nellis 2017)
and the privatization of penal social control in particular. e causes for intro-
ducing or expanding EM in most countries were the high pressure of prison
overcrowding during the 1980s and 1990s. erefore, in many countries, the
dominating aim was to cope with increasing prison population rates. But the
rehabilitation goal was of major importance as well, in particular in Scandina-
via, Austria, the Netherlands and other countries that emphasize the impor-
tance of the probation service and use electronic monitoring as an additional
form of controlling rehabilitative directives or supporting parole schemes in
collaboration with correctional and probation services.
In contrast, England and Wales – and more recently Belgium – have intro-
duced EM as a stand-alone measure without any involvement of social work-
ers. EM represents only a short-term restriction of liberty punishment without
any rehabilitative eorts or programs in these cases.
In some countries, the new technology of GPS-tracking oered the possi-
bility of surveillance in order to protect (possible) victims by establishing “in-
clusion” and “exclusion zones” for the oenders, which is now used on a very
limited scale, e.g., in England/Wales, Germany, the Netherlands and Spain.
A very dierent approach is to focus on particularly high-risk oenders,
even if they have fully served their sentences. ese men and women should
be free, but society does not accept them being released without supervision.
Some countries, such as France, Germany, the Netherlands and Switzerland,
have introduced a probation-like penal measure, the so-called supervision of
conduct order, which allows supervision and EM in order to protect the soci-
ety from severe re-oending. In the Netherlands, the respective legal base is a
suspended treatment measure called TBS. In Germany, the respective law re-
form of 2011 was the direct result of the jurisprudence of the European Court
of Human Rights, which, in 2009, sentenced Germany for illegal punishment
by the security measure of preventive detention (a measure for dangerous of-
fenders to be served aer having fully served the determinate prison sentence,
for details see Dünkel, iele, Treig 2017), and which allows for an EM-super-
Frieder Dünkel. Electronic Monitoring in Europe – a Panacea for Reforming Criminal Sanctions Systems?
63
vision of these oenders. In France, the focus is more on terrorist oenders
and their social environment, a question which– aer the events of December
2016 in Berlin – has also been discussed in Germany and was enshrined in
the Police Laws of the federal states in 2018 (a supervision for the so-called
“endangering persons,” regularly from an Islamic background).
4. International standards and human rights
issues, particularly recommendation 4 (2004)
of the Council of Europe
Human rights standards concerning the criminal justice system had tra-
ditionally been developed with regards to imprisonment. Standard minimum
rules for prisoners had rst been issued by the UN (1955), and the so-called
Mandela Rules (2015) were just recently adopted as a modern and actualized
version of these standards. e Council of Europe, in 1973 and 1978, followed
with its European Prison Rules, which have been updated in 2006 (see, for a
comprehensive view of European Prison Law, van Zyl Smit, Snacken 2009). In
the late 1980s, some evidence came up that human rights violations were not
limited to sanctions depriving persons of their liberty but that the so-called
community sanctions were also bearing the risk of human rights violations.
Humiliating and stigmatizing forms of community service were just one exam-
ple. It is evident that intrusive measures, such as electronic monitoring, have
a special potential for human rights infringements. In 1992, the Council of
Europe adopted Recommendation (92) 2 on Community Sanctions and Meas-
ures, a general outline on how to use and organize this area of sentencing (the
correspondent UN-based rules were the so-called Tokyo-Rules from 1990).
Recently, more specic Recommendations – on early/conditional release (Rec.
[2003] 23), on probation, the Probation Rules (Rec [2010] 1), and, nally, on
electronic monitoring (Rec. 2014) 4 – have been issued.
e following remarks concentrate on these Recommendations on elec-
tronic monitoring, however not without citing two important regulations con-
tained in the 2010 Probation Rules: it is stated in No. 57 that “when electronic
monitoring is used as part of supervision, it shall be combined with interven-
tions designed to bring about rehabilitation and to support desistance.” EM
is, therefore, brought in line with the Council of Europe’s orientation toward
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the rehabilitation and social reintegration of oenders. Furthermore, No. 58
of the Probation Rules refers specically to the principle of proportionality by
stating that “the level of technological surveillance shall not be greater than
is required in an individual case, taking into consideration the seriousness of
the oence committed and the risks posed to community safety” (Council of
Europe 2010).
e aim of rehabilitation is taken up in the EM-Rules of 2014, e.g., in Rule
8: when considering the possibility of EM as a stand-alone measure, Rule No.
8 says: “Electronic monitoring may be used as a stand-alone measure in order
to ensure supervision and reduce crime over the specic period of its execu-
tion. In order to seek longer term desistance from crime it should be combined
with other professional interventions and supportive measures aimed at the
social reintegration of oenders.” In the commentary, the empirical evidence
on what we know about EM and its possible eects and desistance from crime
is outlined (see Part 7 below).
e EM-Recommendation (2014) 4 emphasizes that the “use, as well as the
types, duration and modalities of execution of electronic monitoring in the
framework of the criminal justice shall be regulated by law” (Basic Principle
No. 1). is is not self-evident, as our study has also revealed that the condi-
tions and target groups are not clearly described by law in many countries.
is is important, as in its several rules, the Recommendation “warns” the
users that EM is an intrusive measure that can violate basic human rights and
therefore is to be applied cautiously and with respect to possible human rights
infringements (including data protection rights, which particularly in Ger-
many are of major importance, see Dünkel et al. in Dünkel, iele, Treig 2017,
p.11 .). e EM-Recommendation, therefore, is a further good document
stating that crime policy should be moderate in imposing intrusive sanctions
or measures. e Rules specically address the problem that EM may contrib-
ute to an unnecessary and therefore disproportionate net-widening if it is used
a measure for avoiding pre-trial detention (see Rules No. 2 and 16). If there is
no real risk of escape, pre-trail detention would not be legitimate; therefore,
EM is also not justiable. If there is a strong risk of escape, EM would not be
appropriate in hindering a person from disappearing. Practical experience in
many countries demonstrates that these restrictions against imposing pre-trail
detention (and EM) are not strictly observed. erefore, one could assume
Frieder Dünkel. Electronic Monitoring in Europe – a Panacea for Reforming Criminal Sanctions Systems?
65
that an “illegitimate” use of EM is widespread if it is used in this eld. Coun-
tries who follow these considerations logically do not nd any suitable cases
for the application of EM (see, e.g., Germany in the Hesseproject, or Swit-
zerland). In Switzerland– as far as can be seen – since 2011, only two cases
of replacing pre-trial detention with EM have been registered (see Dünkel,
iele, Treig 2017).
e issue of proportionality is further addressed in the Basic principles 4.
and 5., when stating that EM “shall be proportionate in terms of duration and
intrusiveness to the seriousness of the oence alleged or committed” (No. 4) or
that EM “shall not be executed in a manner restricting the rights and freedoms
of a suspect or an oender to a greater extent than provided for by the decision
imposing it” (No. 5). e “rights of families and third parties in the place to
which the suspect or oender is conned” must be considered (No. 6).
5. Expanding social control – net-widening
or reducing prison population rates?
One of the crucial questions for empirical research is to what extent the
aim of reducing prison population rates has been reached, and to what extent
EM is only another alternative in the list of alternatives. In that case, it can be
an additional element in the scope of community sanctions, intensifying so-
cial control beyond the “normal” probation work. Such intensication may be
justied if the traditional probation work and supervision was insucient and
if evidence shows that an additional need for supervision and control of this
(more technical) kind would be helpful. Advertisers of EM promote the idea
that EM helps unstructured and instable oenders to adapt to a more struc-
tured daily routine, which indeed may be true in individual cases. But what
happens aer the (mostly short) period of EM, if the devices are removed?
In our study on 17 European countries (see Dünkel, iele, Treig 2017), we
could only rarely and, in such a case, to a very limited extent nd “indicators”
for the reductionist potential of EM concerning prison population rates. A
good example are the Netherlands. e “dramatic” decline of the prison popu-
lation rate (from 128 per 100 000 inhabitants in 2006 to about 85 in 2012 and
53 in 2015, see Dünkel 2017) took place before EM got quantitatively impor-
tant. e increase of numbers of monitored oenders and the average time
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of about 4 months under EM may have somehow contributed to the further
reduction of the prison population since 2012, but the major part apparently
has to do with the decline of registered (serious) oending and the strong em-
phasis given to other sentencing options than EM-programs – the suspension
of (conditional) sentences (without EM) in particular.
On any given day, Germany has no more than about 70 serious oend-
ers under GPS monitoring (as an additional control element to the probation
service aer having fully served a long-term prison sentence or being re-
leased from preventive detention or a psychiatric security measure, see Dün-
kel, iele, Treig 2017a) and another 80 oenders under “regular” EM in one
of the 16 Federal states (Hesse), a state which happens to be the only one to
practice EM in this form. e question of reducing prison population rates by
introducing EM has never been an issue in Germany but with regards to spe-
cic sentencing strategies in the area of traditional community sanctions. As
in the Netherlands, the decline in registered (serious) crime rates is the main
reason for the decline in the German prison population since the mid-2000s
(see Dünkel 2017).
In our comparative study on 17 jurisdictions in Europe (see Dünkel, iele,
Treig 2017), we found indicators for inuences on the size of prison popula-
tion rates only in countries that explicitly provide legal safeguards to really
replace terms of imprisonment by EM-supervision, in particular if the proba-
tion services are involved preventing excessive net-widening structures. is
safeguard does not work in England and Wales, where the probation services
are widely excluded, and where the private companies providing the technol-
ogy are also responsible for executing the sanctions.
Good examples for avoiding net-widening are Austria, Finland, Sweden,
and to some extent, the Netherlands (see above).
In Austria, EM is provided for prisoners during their last stage of impris-
onment, who can serve their sentence in house arrest. In Finland, EM, as a
judicial sanction, is only provided if nes and community service seem to be
inappropriate; in other words, EM is the very last resort before imprisonment.
Also, in the case of early release from prison, the Finnish legislator follows a
real reductionist approach by giving prisoners the opportunity to serve up to
six months before receiving a “regular” early release (a kind of quasi-automatic
parole). erefore, prison capacities are saved in these cases. However, Finland
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67
also has some doubtful practices that can be judged as a net-widening strategy.
Since the past few years, prisoners in open prison facilities wear electronic de-
vices (when they go out for work or leisure time activities) in order to unbur-
den sta members from controlling their activities. is is a clear additional
(and, in most cases, probably unnecessary) social control measure.
Also, in Sweden, the legislator has emphasized that EM should only replace
unconditional prison sentences and no other alternatives. Insofar one could
think of EM as contributing to the recent decline of the prison population.
However, only short-term imprisonment of up to 6 months is considered, and,
in practice, the periods of EM are regularly very short: 50% of EM sanctions
during 2013–2015 have replaced a prison sentence of up to one months, an-
other 30% – of up to 3 months, and only 20% – of 3–6 months (see Yngborn
in Dünkel, iele, Treig 2017). e Swedish policy can only be understood
in terms of the long tradition of imposing short-term unconditional prison
sentences for relatively minor crimes, such as drunk driving. In Germany, the
legislator – already in 1969 and by a major law reform – has replaced short-
term prison sentences with nes. EM does therefore not play an important role
in Germany. In Sweden, changes have taken place in sentencing by expanding
nes; therefore, the importance of EM is little.
One other critical question relates to the target groups of EM. e group of
“dangerous” oenders are in the scope of electronic monitoring only in Ger-
many, France, the Netherlands and Switzerland. In all other countries, EM is
used for middle-range crimes and low-risk oenders. is raises the question
of whether the traditional and less intrusive forms of supervision and con-
trol by the probation agencies are not sucient or if other community sanc-
tions and measures are less “credible.” e latter seems to be characterizing the
English sentencing policy under the so-called “punitive turn.” Indeed, the call
for more “credible” and “tough” alternatives has opened the oor to expand
technical solutions and to exclude the traditional probation services. To some
extent, English probation services have contributed to this development by
categorically refusing to take part in any EM-based sanctions (see Nellis 2017).
e core question of taking the principle of proportionality seriously re-
veals very dierent approaches in Europe and oen within the crime policy of
a single given country.
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In Belgium, for example, EM is used in dierent forms. In the case of long-
er prison sentences of more than 3 years, EM can be used the prepare release
by serving the sentence at home for up to 6 months before following a regular
parole release, thus replacing a denite prison term with EM. Probation ser-
vices are involved in these cases, and EM supports their work. On the other
hand, a new policy came into eect just recently that allows a stand-alone EM
supervision of oenders sentenced with up to one year of imprisonment with-
out any support from the probation services and without any regulation based
on which other community services should or could be prioritized.
In Denmark, the back-door-strategy to serve the last 6 months of a prison
sentence is a reductionist measure, whereas EM, as an immediate community
sanction, is probably more oen used more as an alternative to other commu-
nity sanctions than to imprisonment.
France uses a lot of dierent EM options; again, only a back-door-strategy
of an earlier release combined with EM has a potentially reductionist eect.
Although positive numbers are increasing in this case, the prison system suf-
fers from one of the highest overcrowding rates in Europe.
One could extend the number of examples, but so far one may conclude
the following:
• that the introduction and expansion of EM in Europe did not have any
major impact on prison population rates and, in most cases, failed to
resolve the problems of overcrowding (e.g., England/Wales, France, Ita-
ly, Poland and, at least until recently, Belgium);
• that in many cases it just formed an additional or intensied form of
social control;
• that it contributed in some countries to eliminating or diminishing the
importance of the traditional social support schemes, such as probati-
on services, by establishing EM as a stand-alone sanction (in England/
Wales, Belgium or Scotland, with a reverse trend in crime policy in the
last case);
• that in other cases, it became part of a rehabilitation-oriented commu-
nity sanction under the dominant role of the probation or correctional
services (Austria, Germany, the Netherlands, Sweden, Switzerland or,
increasingly, Scotland).
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6. Does electronic monitoring save costs
for the criminal justice system?
Closely related to the question of whether EM really contributes to a re-
ductionist approach concerning the use of imprisonment is the question of
costs. Is EM saving costs as widely advertised by its promoters, in particular
the private companies selling the technology?
One, at rst glance, convincing argument is that the daily costs of EM are
far smaller than a day costs in prison. All reports of our European comparative
project on 17 countries demonstrate that the daily costs of EM vary consider-
ably, between some 5€ in Poland and about 100€ in Denmark or Norway, and
that they are indeed lower than imprisonment. However, this calculation is
only valid if (1) EM is really replacing imprisonment and (2) a cheaper alterna-
tive, such as simple early release measures, probation or parole (without EM)
are not available or appropriate.
e second consideration – whether any other options of sanctions could
be used – is oen neglected. One of the fatal consequences in this direction
is the implementation of EM as a stand-alone sanction (e.g., in Belgium or
England and Wales) for low-risk oenders. It is evident that other sentencing
options, such as nes or community work orders, have not been suciently
taken into consideration. EM then takes the place of a cultural gap in develop-
ing “creative” appropriate community sanctions or measures. erefore, it is
somehow tragic that the EU-funded EM-project referred in this paper (see un-
der Part 1 above) ran under the heading of “Creativity […] in the Use of EM”
and generally excluded the whole range of criminal sanctions, where more
creativity could have come to dierent solutions than to thinking about how
to increase the use of EM.
Having presented these mixed results, the main research question remains
open – could EM also contribute to reducing reoending and promoting so-
cial integration?
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7. Criminological theory and electronic monitoring –
why should electronic monitoring reduce crime?
From a theoretical point of view, one must dierentiate and isolate EM
as an integrated rehabilitative measure that cannot be easily evaluated, as it
is combined with the rehabilitative work of the correctional and probation
services. e “plus”-eect of EM is dicult to isolate. However, one could
build comparable groups of probationers with and without EM even in a ran-
domized experiment.
EM, as a stand-alone measure, could be evaluated more easily. e prob-
lem is that the theoretical assumptions are not really convincing: why should
EM reduce crime in the cases where no other social support is provided? e
only theoretical aspect is that the oender calculates that they will be detected
when reoending and that they do not want be moved to a prison population.
is is the classic question of general prevention (or deterrence), which can-
not be addressed exhaustively here (see, in general, Nagin 1998; Pratt, Cul-
len 2005; Pratt et al. 2006). In general, one can say that getting-tough-policy
strategies (more police density and prosecution, increasing incarceration rates
and the severity of punishment) have the lowest eects on crime rates (Pratt,
Cullen 2005). Deterrence research dierentiates between the perceived sever-
ity of punishment in case of reoending and the certainty of being detected
and reconvicted. It can be taken as a general validated result that certainty has
a more important deterrent eect than the severity element. In general, crimi-
nal law and crime policy factors, as well as the sentencing practice, are of less
importance than other social environment factors, such as social bonds etc.
Pratt et al. (2006) reviewed 40 micro-level studies of deterrence and compared
the factors of severity, certainty of punishment, deterrence theory composites
and non-legal sanctions (loss of working place, negative consequences in the
social environment). Severity and the deterrence composites factors had the
lowest mean size eects compared to the factor certainty and, in particular, to
non-legal factors. If further variables from other criminological theories are
considered, such as self-control, peer-inuences and the like, the strength of
deterrence variables is further weakened. e factor “certainty” seems to have
dierential eects and is of more importance in the case of white-collar crime
and of higher-level educated persons.
Frieder Dünkel. Electronic Monitoring in Europe – a Panacea for Reforming Criminal Sanctions Systems?
71
In taking these results into account, one may expect some deterrent eect
of EM, as it increases the probability of being detected, in particular while
being under GPS tracking. On the other hand, there are also negative eects,
such as the stigmatization of wearing devices that persons in the public might
recognize, or other restrictions of daily life that might endanger the compli-
ance. For example, it was reported that the compliance for EM replacing pre-
trial detention is lower because the time under EM, as an alternative to pre-
trial detention, does not count for a prison sentence the oender may later
receive in the court judgement.
Looking at the evaluation research on EM, Renzema and Mayo-Wilson
come to the conclusion that EM may suppress the committing of crimes dur-
ing the period under supervision but– with few exceptions – not beyond it
(Renzema, Mayo-Wilson 2005, p.231; Renzema 2013, p.258 ., 260 f.). Stud-
ies by Canadian scholars revealed that there was no reduction of crime for
electronically supervised probationers compared to regular probationers su-
pervised by conventional surveillance techniques (Wallace-Capretta, Roberts
2013, p.51). Furthermore, the said scholars they state that “[a] signicant pro-
portion of the oenders who had been placed on EM had low-risk scores, and
may well have been managed equally successful” by conventional probation
supervision, which raises the question of net-widening (ibid, p.51).
e result that reoending during the EM-period remains the exception is
consistent with the deterrence perspective under the realistic presumption that
EM increases the risk of detection when being under electronic surveillance.
However, as Renzema concludes also in his recent evaluation report, “EM is
now mainly about punishment on the cheap, not rehabilitation. Yet, in the at-
tempt to deter and punish humanely and inexpensive, most users of EM are
not even trying to use it as a tool for rehabilitation” (Renzema 2013, p.266).
e studies existing so far for evaluating the eects of EM do not show any
superior eect on preventing reoending better than other traditional com-
munity sanctions, but quite a lot of problems in other areas of daily life (stress
in the families, EM as a serious burden, possibly stigmatizing in the outside
community etc.). is corresponds also with the evaluation of high-risk of-
fenders under EM that was conducted by German scholars (see Bräuchle in
Dünkel, iele, Treig 2017).
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Another more favorable study was a Swedish project evaluated by Marklund
and Holmberg (2009). However, the positive outcomes for EM-clients have to
be seen in the Swedish rehabilitation model, as EM is embedded in the whole
range of rehabilitative support (employment, housing and other probation and
community services; see also Renzema 2013, p.259; and Wennerberg 2013,
p.121 .). Another important research result is that EM is more promising
for medium and high-risk oenders than for low-risk oenders, where no sig-
nicant reduction of reoending could be found (see Renzema, Mayo-Wilson
2005; Renzema 2013). As the commentary to the EM-Rules states,
Location monitoring technology cannot in itself bring about a change of attitude
or behaviour in the way that a number of probation initiatives and programmes
dealing with oending behaviour are designed to do. Some evidence suggests
that wearing a monitoring device can have a ‘shaming eect’ but by itself this is
insucient to bring about long-term change. If reintegration and desistance are
to be achieved electronic monitoring must be used in conjunction with measures
which can accomplish this, tailored to individual oenders’ circumstances (drug
treatment, alcohol treatment, anger management, employment skills training,
helping with nding jobs and shelter, etc. (Council of Europe 2014, Commentary
to Rule 8, referring to Wennerberg 2013, see above).
is result is also underlined by a recent study conducted in France by
Henneguelle, Monnery, Kensey (2016). ey compared EM-cases (all 580 cas-
es in the years 2000–2003) with possibly eligible prisoners 5 years aer release.
e EM-cases showed a 14–15% lower recidivism rate than the ex-prisoners’
group. However, under control of a rather strong selection bias (EM-cases
were on average lower-risk cases, more than the ex-prisoners’ group), only 6–7
percentage points of dierence remained. e dierential analysis showed that
the main reasons for a lower recidivism rate of the EM group was that they
were strongly supported by home visits of probation ocers and employment
programs that they had to participate in. Unfortunately, the study did not com-
pare the alternative of suspended sentences with probationary supervision but
without EM. e data indicate that the factors of probationary and other sup-
port probably had the major impact on reduced reoending rates; therefore,
it could be said that it is not EM but just the traditional care and supervision
in the context of suspended sentences that make the dierence in incarcera-
Frieder Dünkel. Electronic Monitoring in Europe – a Panacea for Reforming Criminal Sanctions Systems?
73
tion rates. is is plausible because the length of EM supervision on average
was just 73 days (median: two months, see Henneguelle, Monnery, Kensey
2016, p.650 .), and there were no dierences in recidivism in the rst and
the later terms of supervision. During the later development of EM in France
(aer 2003), the practice of home visits almost totally disappeared, and the
length of EM declined to less than 50 days in average, which might further
undermine the claimed positive eects of EM (Henneguelle, Monnery, Kensey
2016, p.655). So, the French data give no evidence that EM is superior to tra-
ditional forms of supervision by the probation service, although it may possess
a potential in being superior to custody. e consequences with regards to the
principle of proportionality are discussed in Part 8.
ere is, however, some evidence (also in the French study) that there might
be cases, in particular those of younger oenders, where EM could contribute to
establishing daily routines and structures and could therefore help stabilize the
lives of oenders who would otherwise not have completed their rehabilitative
programs and who thereby benet from them. is is somehow conrmed by
the German project in Hesse, where, in individual cases, EM serves as a control
that the supervised persons follow the activity plan agreed with the probation
services when they go out (see Rehbein in Dünkel, iele, Treig 2017).
8. Perspectives for a proportionate and human
rights-based use of electronic monitoring
In summary, it is clear that EM is not a panacea – neither for reducing pris-
on population rates nor for reducing reoending rates or promoting the social
integrating of oenders. It is the task of critical empirical research to explore
under what conditions and with whom EM can play a constructive role in ar-
riving at the aims described by its promoters. Beyond empirical evidence, the
human rights approach has largely been neglected. EM is an intrusive measure
and must be justiable against less intrusive measures or sanctions. erefore,
policymakers should use EM only in cases where other community options are
not sucient or eective for reaching the abovementioned goals of preventing
crime and promoting social reintegration.
A concrete policy recommendation would be to implement EM only in
cases where (1) otherwise imprisonment would be unavoidable and (2) other
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74
community options would not be sucient. e second part of the conditions
under which EM can be acceptable is mostly neglected; therefore, a strong
overuse of EM can be identied. e issue is not in why EM is “underused”
and how to “further develop its potential,” which can be seen as the underlying
research question of the abovementioned EU-funded project on “Creativity
[…] in the Use of EM […]” (Hucklesby et al. 2016), but how it can be reduced
to a justiable extend. Germany insofar should not be stigmatized as an out-
sider who has to reconsider its policy, but instead be seen as a country that has
taken the principle of proportionality seriously as required per international
standards and recommendations. A few countries in our research are in the
same line, however not consequently enough in all aspects (see the example
of Finland above).
If the principle of proportionality is taken seriously, EM must be used only
in the few cases where no other alternative to custody is available or appropri-
ate. e result in the Federal state of Hesse in Germany (trying to follow this
approach) is that about 80 oenders out of 16 000 oenders under regular
probationary supervision qualify for EM (without having excluded the net-
widening eects in all cases).
Empirical evidence furthermore reveals that EM can only be promising in
reducing reoending if the electronic surveillance is embedded in the work
of probation and aercare services under the rehabilitative goal, as practiced
in Sweden and the Netherlands (and, in a few cases, in Germany; see Dünkel,
iele, Treig 2017a and Part 7 above). As a stand-alone sanction for low-risk
oenders, EM is the policy and practice in England and Belgium, and there-
fore should denitely be rejected.
ere is one other group of cases where EM can be justied. Again, Ger-
many uses this option in a very restrictive manner for oenders who, for cer-
tain reasons (end of sentence, constitutional grounds, in particular – a dispro-
portionate length of executing a preventive or psychiatric sentencing option),
have to be released but who present a special and concrete danger for the life
or health of others: the supervision of conduct order for “dangerous” oend-
ers aer having fully served their sentence (France and the Netherlands have
similar options in their law). Important is the quantitative dimension. Out of
about 37 000 oenders under supervision of conduct orders (see DBH 2016),
about 60–70 are under electronic supervision, which may be justiable for the
Frieder Dünkel. Electronic Monitoring in Europe – a Panacea for Reforming Criminal Sanctions Systems?
75
sake of safety in the general society. e “Rechtsstaat,” however, must always
be keen to provide regular reviews with regards to this kind of surveillance.
e famous Dutch penologist, Constantijn Kelk, has always emphasized that
prisoners, too (and today one must add: those released but under intensive
supervision like EM), are “Rechtsburger” with their own human rights (“legal
citizens,” see van Zyl Smit, Snacken 2009, 69 ., which became the jurispru-
dence of the German Federal Constitutional Court since 1972).
Although Germany may be seen as an exception in this reductionist and
human rights-oriented approach in using EM, it is worth to emphasize such
penal values as the principle of proportionality in times where fashionable
technical “solutions” claim to be promising perspectives.
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Elektroninė stebėsena Europoje – panacėja reformuojant
baudžiamųjų sankcijų sistemas? Kritinė apžvalga
Frieder Dünkel
Santrauka
Pirmieji bandymai taikyti elektroninę stebėseną (monitoringą) Europoje prasidėjo pra-
ėjusio amžiaus dešimtojo dešimtmečio pradžioje. Pastaruosius 15 metų dauguma Euro-
pos šalių skelbia taikančios elektroninę stebėseną ar bent jau bandomąsias jos versijas.
Tokį stulbinamą elektroninės stebėsenos pakilimą Europoje galima aiškinti komerciniu
interesu, kuris tampa akivaizdus, žvelgiant į privačių įmonių, parduodančių įrangą, vei-
klą. Nors atrodytų, kad elektroninė stebėsena paplito daugelyje šalių, būtina suprasti,
kad ji Europos sankcijų sistemose atlieka nereikšmingą vaidmenį palyginti su kitomis
bausmių ar paleidimo iš laisvės atėmimo vietų alternatyvomis. 2013m. duomenimis,
vidutiniškai tik apie 3proc. visų probuojamų asmenų buvo stebimi elektroniškai. Šiame
straipsnyje nagrinėjami klausimai, susiję su elektroninės stebėsenos įtaka kalėjimų po-
puliacijos dydžiui ir sumažėjusiam pakartotinių nusikaltimų skaičiui, su besiplečiančio
stebėsenos tinklo pasekmėmis ir kaštais, būtina reabilitacine pagalba, žmogaus teisėmis
grįstomis perspektyvomis ir apskritai elektroninės stebėsenos (ne)prasmingumu.
Pagrindiniai žodžiai: elektroninė stebėsena (monitoringas), bausmė, tarptautiniai
standartai, žmogaus teisės, kriminalinė justicija.
