Home Detention Is a Privilege (Even If It Doesn’t Feel Like It)

For thousands of Hoosiers, Community Corrections home detention provides a welcome alternative to time in jail or in a work release facility. While the program offers a certain degree of freedom, there are very real restrictions and plenty of pitfalls to consider.

First off, home detention requires a home—you can’t qualify if you don’t have a steady residence. Likewise, if you change domiciles without properly notifying Community Corrections, you’re risking a violation, because the main point of this whole arrangement is for the State to consistently keep tabs on you. This presents a tremendous challenge to people who lack stable housing, reside out of state, or enjoy a shaky relationship with their landlord. In some cases, the underlying criminal charges have a way of making home detention impossible. For example, in the case of a domestic dispute, a no contact order can force the defendant to find a new place to sleep. If a court order is preventing you from being near someone who lives in your home, this disqualifies you from establishing residency for purposes of home detention.

Another preliminary concern is the overall cost. Home detention may be less restrictive than other forms of punishment, but it isn’t cheap. If you sign up for home detention in Marion County, you’re assessed an up-front user fee plus as much as $14 a day for the privilege of being monitored—and $14 a day has a way of adding up. Home detention fees are calculated by Community Corrections according to a formula that’s supposed to determine what each defendant can afford to pay. Despite this fact, it’s one of life’s few guarantees that home detention will always cost more than you want it to.

If a judge places you on home detention, following instructions needs to be your biggest priority. In an instructive case from 2017, a defendant sentenced to home detention was ordered to go straight home after being fitted with her monitoring device. She instead decided to run some errands and eventually managed to shut off her ankle monitor. After spending six hours in the wind, the defendant was recovered and charged with failure to return to lawful detention as a Level 6 felony. The defendant’s audacious appellate strategy was to argue that her residence couldn’t possibly be considered a place of “lawful detention,” despite the fact that her residence is precisely where the judge had ordered her to be lawfully detained. The Court of Appeals was unimpressed, and this defendant now has an additional felony conviction on her record, all because she failed to follow instructions.

Violating a home detention order is a Level 6 felony, as is the removal of a court-ordered electronic monitoring device. If you fail to keep your monitoring device charged and Community Corrections is unable to contact you—guess what? That counts as a violation. Equipment issues are a significant hassle for many people serving a sentence on home detention, with some defendants going so far as to take their complaints of unfairness to the local news. Other seemingly minor violations can lead to a charge of escape, which is broadly construed to include any knowing or intentional violation of a home detention order.

Another rarely-mentioned drawback to serving time on home detention is that in order to do so, a defendant must waive fundamental privacy rights. A typical home detention agreement requires that the participant consent to all searches of his person, home and vehicle, and this isn’t a standard that most Americans are accustomed to. Here’s an example from the Clay County Community Corrections intake form:

HOME VISITS:  I agree to allow any Clay County Community Corrections staff, Probation officer, or law enforcement officer to enter my residence at any time without prior notice. I agree to submit to a search of my person, cell phone or residence in order to enforce the rules of Home Detention. I also understand that it is my responsibility to let all members of my household know that a home visit can be performed at any time without prior notice.

As invasive as this sounds, all inconvenience is relative, and there’s no question that life on home detention is preferable to being incarcerated. The important thing here is to understand that home detention counts as lawful detention, and your constitutional freedoms are suspended until your sentence is up. By accepting the terms of a home detention contract, you’re explicitly agreeing to let the police search your residence at any time, while also implicitly acknowledging that this deal is still better than the one where you end up behind bars. Home detention may be rough, but it’s not as rough as work release or jail.

If there’s another drawback to home detention, it’s that it’s easy to screw up. The degree of freedom you enjoy while getting to sleep in your own bed also makes it easier to violate the terms of your home detention agreement. State-sanctioned punishment always involves a lot of rules, and every broken rule is a violation waiting to be filed. In Indiana in 2018, almost 20% of defendants on misdemeanor home detention failed to successfully complete the program. For felony home detention, the fail rate was close to 40%. No one ever said freedom was easy to navigate.

In a heroic act of empathy, one of the Marion County Superior Court judges recently placed herself on GPS monitoring as a way of investigating the complaints she so frequently hears from criminal defendants. The judge found the preliminary instructions easy to understand, and an exclusion zone—a place where the monitored person is not allowed to go—was created in order to give her the full effect of home detention. During the course of her trial run, the judge found that the equipment functioned correctly, but that’s not to say she didn’t notice any downsides.

In addition to attracting sideways glances and setting off stores’ anti-theft alarms, the judge’s GPS device also had a way of intruding at inopportune moments. After years of listening to defendants complain through their violation hearings about the disruptive nature of electronic monitoring, the judge got to experience it firsthand when she had a judicial conference interrupted on several occasions by notifications that she needed to go outside and get a clear satellite signal. This scenario then repeated itself when she was visiting a family member at the hospital. If the judge had actually been subject to the conditions of home detention, these equipment issues would’ve landed her in court with violations to answer for. All in all, the judge concluded that home detention works best for people who have a strong support system and are highly-motivated to follow the rules.

It’s unquestionably better than jail, but home detention is no walk in the park. It includes a lot of rules and a lot of variables, and if you’re not careful, a home detention violation can put you right where you didn’t want to be—behind bars. If you have questions about home detention, or if you’re facing a violation, call the Marc Lopez Law Firm at 317-632-3642. Initial consultations are free of charge.