House Arrest: A Critical Analysis of an Intermediate-Level Penal Sanction

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This Comment addresses several of the major legal and policy questions concerning house arrest, a new, increasingly employed criminal sanction. Part I summarizes the current uses and conditions of house arrest in the United States. It is not, nor does it pretend to be, a comprehensive examination of all instances of house arrest. Much information is unavailable, because probation departments are either unwilling or unable to report on their use of this sanction. Also, because new house arrest programs continue to unfold, an inclusive report concerning the most recent episodes of home confinement would require constant monitoring and revision. Part I instead examines existing programs, focusing discussion on the difficulties encountered with house arrest regimes thus far. Even at this early stage of implementation, problems have arisen regarding cost, supervision, reduction of prison overcrowding, and the general purposes of home confinement. Part II offers a prognosis of the sanction's success or failure based on the above factors, as well as indices of recidivism and revocation. Part II also notes that court challenges may arise where courts lack statutory authority to impose house arrest. Part III discusses the constitutional implications of house arrest. First, it describes the nature of the state's power to impose probationary regimes such as house arrest and the degree to which probationers retain constitutionally protected rights. In view of the standards that courts have announced in the ordinary probation context, house arrest is not per se unconstitutional. Nevertheless, limitations must attach to the restrictions imposed on the confinee. Finally, the specific impact on the detainee's first amendment rights of freedom of religion and association are addressed to show the need to structure conditions of home confinement carefully.