Tell someone you're on house arrest, and it sounds like a strict punishment.
Tell someone you have to wear an ankle bracelet, but that it doesn't prevent you from going to work, going to the store, and attending treatment, then it sounds less restrictive and oppressive, doesn't it?
If you're on electronic home monitoring (EHM) in Washington, however, you fit in both categories.
The built-in tension between punishment and freedom that goes along with EHM provides the legal backdrop to State v. Kim, a case decided by the Court of Appeals in March 2019.
In 2016, Kim shot and killed a man who was trying to rob his convenience store. The State charged Kim with murder in the second degree.
The court did not set bail but instead and him from jail—perhaps based on his lack of record or maybe the circumstances of the crime. Instead, a Pierce County Superior Court judge set strict conditions of release, including EHM.
What is Electronic Home Monitoring?
EHM is an alternative to jail. If you're found guilty of a crime, a court can impose EHM instead of jail. Before trial, the court can impose EHM as alternative to cash bail or bond. This type of EHM is referred to as presentence EHM.
A defendant subjected to presentence EHM cannot leave home except for work, court, treatment, or other pre-approved events, like medical appointments or the grocery store. An EHM defendant has to wear an ankle monitoring bracelet, which transmits a signal—via landline or cell phone—to the EHM provider if the person tampers with the device, or leaves home without permission, or deviates from a pre-approved appointment.
For defendants charged with DUI or other alcohol-related offenses, EHM may also include a alcohol monitoring device, which monitors alcohol consumption.
EHM is not punishment
Kim eventually pleaded guilty to murder in the second degree and the court sentenced him to 100 months (approximately 8.5 years) in jail. Before pleading guilty and while awaiting sentence, Kim spent 450 days on EHM, and he asked the court to get 450 days credit off his sentence.
The court said no. Under Washington law, felony defendants who are convicted of serious crimes (like murder, for instance) cannot receive any credit off their sentence for time spent on pre-sentence EHM. Citing this specific statute—RCW 9.94A.505(7), the trial judge denied Kim's request.
Kim appealed his sentence. He argued that RCW 9.4A.505(7) violates the Washington and United States Constitutions.
Kim made two primary arguments on appeal--one based on double jeopardy, the other based on equal protection. The Court of Appeals rejected both arguments.
By not receiving 450 days of credit for his presentence EHM, the court basically punished him twice, which basically violates double jeopardy.
So now we return to the question that triggered this blog.
Is EHM punishment. No, the Court of Appeals ruled.
EHM is a punishment alternative, not a punishment substitute, the Court wrote. Jail is unquestionably punishment, but unlike incarcerated defendants, EHM defendants can work, make money, go to treatment, and leave their home as much as they want to meet with their attorney.
Furthermore, EHM somewhat levels the economic playing field, because indigent people have an extremely difficult time posting bail. That's why—as the Court noted—the Washington State Court's Commission on Minority Justice proposed spoke out in favor of EHM in the early 2000s.
Kim also argued that RCW 9.94A.505(7) violates equal protection because only certain defendants can't get sentencing credit for presentence EHM, but other defendants can.
Why should so-called “non-violent” white collar criminals get EHM credit but people trying to defend their stores against robbers can't?
To try to adequately explain the nuances of equal protection would do a disservice to equal protection arguments, so I won't even try. But in a nutshell, the State can treat certain classes of people differently for a legitimate reason, so long as these classes of people being treated differently are not defined by their race, gender, sexual orientation, etc. The State has a legitimate interest in treating more serious offenses (like murder) differently than less serious offenses, so therefore the State has a legitimate interest in deciding that convicted murders aren't getting less jail time because they spent time on EHM before they pleaded guilty.
Now could you argue that white collar criminals can be more dangerous than some convicted murders? Certainly, from a national or global perspective. But under equal protection law, the State doesn't have to make perfect distinctions in trying to further public safety, just reasonable distinctions.