Exploring the unintended consequences of implementing electronic monitoring on sentencing in Norway

ABSTRACT

Electronic monitoring (EM) allows for the tracking of individuals under correctional supervision as they reside in the community. In Norway, EM was implemented as a ‘front-end’ diversionary pilot programme in 2008. As in Sweden and Denmark, EM was a programme managed by the correctional service, not as a sanction delivered by the courts. Quasi-experimental evaluations of the intervention suggest that EM led to meaningful reductions in recidivism and costs in Norway. However, the extent to which the availability of a new, non-custodial correctional programme had unintended consequences for judicial sentencing practices is less apparent. We employ the Focal Concerns theoretical framework to examine why the exercise of judicial discretion may have changed after the implementation of the EM programme. We find evidence of an increase in the number of qualifying sentences to prison at the expense of fewer non-custodial sentencing decisions, suggesting that judges modified their sentencing practices to facilitate EM participation. Results show that as many as 750 people might have been incarcerated rather than being given a non-custodial sentence because of the availability of the EM programme. Considering this increased scope of impact for correctional programming, implications for individual offenders and future reform are explored.

KEYWORDS:

• Sentencing
• electronic monitoring
• incarceration
• judicial behaviour
• Focal Concerns Theory
• Norway

Disclosure statement

The authors declare no conflict of interest.

Correction Statement

This article has been republished with minor changes. These changes do not impact the academic content of the article.

Notes

1. More recent work suggests that reconviction rates around 30% may more appropriate, but this still remains at the low end of global trends (cf. Andersen & Skardhamar, 2017; Yukhnenko et al., 2019).

2. See Renzema and Mayo-Wilson (2005) for an overview of current EM technologies and other relevant policy developments.

3. Note that eligibility was determined by the place of residence, not where the location offence took place.

4. Øster and Rokkan (2012) show that nearly 80% of the target group applies, and that just over half of the applicants are accepted (c.f. Rasmussen et al., 2016).

5. Note that the legislative change defines the eligibility criterion for EM in months (see Lovdata, 2020), whereas the data report sentence length in days (see Statistics Norway, 2019a). In the context of sentencing, one month is standardized as 30 days, and four months/120 days are therefore used interchangeably throughout the remainder of the article.

6. This results in the following main DD equation: y_i = α + β county_i + τ time_t + λ treatXpost_i,t + µ X_i + ε_i,t

7. y_i = α + β county_i + τ time_t + λ capacity _i,t + µ X_i + ε_i,t

8. y_i = α + β county_i + τ time_t + λ availability_i,t + µ X_i + ε_i,t

9. We have also used the year prior to sentencing to test for self-selection and observed virtually identical results.

10. The large number of dummy variables (e.g. 142 for time alone) makes it impractical to include covariate estimates in the main manuscript. Estimates for all control variables (excluding the interaction between year and month) for our main results (see Table 2) can be found in Appendix B, Table B2.

11. The opening of Halden prison represented an increase of about 7% over a previous, system-wide capacity of approximately 3,600 (as of 31 December 2009) (Norwegian Correctional Service, 2010). It is worth noting that the potential impact of the prison’s opening is driven by this change in capacity, not the characteristics of the facility.

12. Regression estimates for this figure (results available upon request) show neither of the treatXyear dummies are statistically significant on their own.

13. Due to space limitations, the estimates for allocation and control variables are not included in the table; these are available from the corresponding author upon request.

14. Trend plots and other supporting material for this analysis are available from the corresponding author upon request.

15. Note that all or none of these individuals might end up serving their sentence EM, depending on their decision to apply, as well as the outcome of the discretionary aptitude assessment carried out by the NCS.

16. 27,914 individuals were sentenced to unconditional prison in treatment counties after EM was implemented. Based on the underlying assumption of the DD approach and the pre-implementation mean (0.4298), we expect that 11,997 of them would have been sentenced to unconditional prison in the absence of EM. With an increase in unconditional prison by between 0.0024 and 0.0236 percentage points (i.e. the 95% CI), the number of people increases to between 12,065 and 12,657 – i.e. between 68 and 660 individuals.

Additional information

Funding

This work was supported by The Research Council of Norway (grant number 202453) and The American-Scandinavian Foundation.