On November 19, 2014, Maine’s NPR News Source (MPBN) published an article about recent experiments with electronic monitoring of domestic violence (DV) defendants in Somerset County, Maine. As Maine has attempted electronic monitoring of domestic violence (DV)defendants in one county, it begs the question whether the State will implement electronic monitoring of domestic violence (DV) defendants across Maine. According to the article, Maine’s county prosecutor’s offices are being encouraged to submit proposals for use of these electronic monitoring devices beginning in 2015.

Let’s suppose for a moment, the county District Attorney’s offices obtain the funding and permission to use electronic monitoring devices on domestic violence (DV) defendants. From my perspective as a Maine Domestic Violence Defense Attorney, electronic monitoring of domestic violence (DV) defendants would raise significant issues pertaining to the person’s constitutional rights of due process, equal protection of the law and rights of privacy.

If you or someone you know is facing a criminal charge of domestic violence in Maine, I encourage you to contact my office for a free legal consultation. I am happy to meet with you to answer your questions so that your mind is put at ease.

How Can Electronic Monitoring Devices Be Used?

For Electronic Monitoring of domestic violence defendants, an ankle bracelet is being used. When people think about an ankle bracelet monitoring device, it is usually tied with serving some sort of house arrest or when the defendant may pose a risk of attempting to escape the jurisdiction. In most scenarios, domestic violence crimes are not the first thing to come to mind.

Why is Maine Looking to Monitor DV Offenders Electronically?

According to the MPBN article, the State’s rationale behind using these electronic monitoring devices would be to monitor the person accused of domestic violence during the period immediately following a domestic violence arrest. The State of Maine considers the time immediately after arrest to be the most critical to the safety of the victim as there is a significant risk of the suspect attempting to contact the alleged victim. This time period is also considered the time in a domestic violence case when the defendant is most likely to be angry from being arrested, and thus might be likely to re-offend. With the electronic ankle bracelets, the State asserts that it will be able to know where the accused is at all times, and thus be able to prevent further domestic violence towards the victim.

On a more practical level, the State appears to want to use these electronic monitoring devices as a replacement for bail for those who cannot financially afford a hefty bail. Overall, the State describes the benefit of these devices would be to let the State know where the person accused of domestic violence is at all times before trial.

Potential Issues

Here are some potential issues I see playing out with this reasoning. The State’s justification for use of electronic monitoring is to prevent a Defendant charged with a Domestic Violence crime (such as Domestic Violence Assault) from committing another crime of Domestic Violence against the same victim while charges or pending. This sounds noble enough, but what if the Defendant goes to a bar? Now it is being used to assure the Defendant’s compliance with his bail conditions and it is likely that a charge of VCOR will brought with little to no police investigation into the charge of Violating Conditions of Release. Big Brother is watching!

Why is electronic monitoring being used for just crimes of DV? Why not for crimes involving use or possession of drugs or crimes of theft for example? If the concern is for reoffending while on bail, why is the State putting such onerous conditions on just Defendants charges with Domestic Violence?

What Bail Requirements are currently imposed on Maine DV Offenders?

Even without this new electronic monitoring device, those accused and charged of domestic violence in Maine face stiff and mandatory bail requirements before trial, including the following:

• No contact with the alleged victim
• No use or possession of alcohol or illegal drugs
• No possession of dangerous weapons, including all firearms
• Being subject to random searches and seizures
• Possible mandatory participation in diversion program, such as Maine Pretrial Services
• Counseling requirements

Not surprisingly, these bail requirements often place a significant burden on the accused. Frequently as a result of mandatory bail requirements, domestic violence offenders work very hard to be able to meet these requirements. It is my client’s goal to show the District Attorney that they can improve themselves ahead of trial.

Performing well on Bail Supports a Favorable Case Outcome

Generally, a client of mine who performs well while out on bail can develop a solid foundation for negotiating a better resolution at court. Some of the following resolutions would not even contemplate a conviction to a domestic violence charge:

• Filing Agreement- in some of the best cases for clients, the State agrees to set aside or “file” the domestic violence charge for a period of time. Then the state dismisses the charge at the end agreed time period based upon the client’s good behavior.
• Plead guilty to a Lesser Charge– For example a reduction to a simple misdemeanor Assault charge. In this situation, the District Attorney removes any domestic violence-related language from the charge.
• Deferred Disposition- In this outcome, the State accepts a guilty plea to domestic violence, and then the issue of sentencing is postponed for a period of time. Since the Defendant is not sentenced, they are not considered convicted of the crime. If the client performs well during this time, the client gets the benefit of the “deferment” such as being sentenced to a lesser charge, or having that domestic violence charge dismissed altogether.

With the electronic monitoring devices taking the place of bail in many instances, I fear that will place a chilling effect on my clients and prevent them from going normally about their lives as “Big Brother” is watching.

How Will Electronic Monitoring Devices Violate Privacy?

After being arrested for a domestic violence offense, I can understand that a person would want to get out of jail as soon as possible, no matter what they might have to give up in exchange. While the electronic monitoring ankle bracelet might be sold as the “less expensive” option to bail, it in fact will end up costing more in terms of lost privacy.

Right now, the State appears to be targeting dv defendants only. This position treats DV accused differently from those charged with other crimes or garden-variety assault. Why is a person accused of domestic violence being treated differently under the law then a person accused of theft or drug trafficking?

How will Electronic Monitoring Affect Future DV Outcomes?

If these devices become used statewide, will the district attorneys begin to prefer that defendants accept these devices over traditional bail? With these automated systems like these electronic monitoring devices, I do not see being able to offer the same opportunities for individualized performance, but they would offer significant convenience for the State.

These devices have the potential to have a disparate financial impact. While those who can afford to pay bail can afford to protect their privacy, while the less financially well off would instead be given an ankle bracelet to track their every move, all under the watchful eye of the State.

For More Information:

If you found this article on electronic monitor of domestic violence (DV) defendants in Maine helpful, you might want to read these other articles:

• Portland Maine DV Defense Attorney: DV Defense Strategies
• Dismissed Felony Domestic Violence Charges
• Domestic Violence Assault in Maine
• Domestic Violence Criminal Threatening in Maine
• Felony Domestic Violence in Maine
• Facing DV Criminal Threatening Charges? Here is a good overview.
• Do I have to be married to be accused of domestic violence in Maine?
• Can a simple push be considered Domestic Violence Assault?
• What if my spouse wants to drop the domestic violence charges?
• Is there a way to remove a No Contact Order (NCO) from my bail conditions in Maine?