Questions Raised Over Private Home Detention Program : Justice: Appellate court rules that such punishment does not qualify as jail time.

Julie Jo Harlan admits to three glasses of vodka and two glasses of wine on the night her car swept back and forth across traffic lanes on Interstate 8 and California 125.

She doesn’t remember knocking down wooden barricades along the freeway, hitting a Volkswagen Bug and then being forced off the road in El Cajon by a witness who called police.

It was December, 1990, and the 39-year-old San Diego mother of two had been driving with a suspended license, had no auto insurance, and had three drunk driving convictions in the previous three years.

Her probation officer recommended two years in jail. The prosecution, working under a plea bargain, asked for six months.

But Superior Court Judge Robert E. May eventually allowed Harlan, who had a history of alcohol problems, to spend 180 days in a private home detention program and another 180 days in a private work furlough center.

In both cases, Harlan would be paying to be monitored by private interests that are not supervised by the county Probation Department or the Sheriff’s Department.

The reliance by judges on alternative means of private custody has prosecutors and probation officers concerned that there is a growing population of convicts who are being supervised by those profiting from their incarceration.

The practice also raises questions about whether only those with money can afford to stay out of jail.

In a ruling last month, a state appellate court reversed May’s decision, saying he erred in sending Harlan to a private program not under contract with county supervisors and monitored by a correctional administrator.

Because she had four drunk driving convictions, Harlan was supposed to do “mandatory jail time” by state law. Private home detention does not qualify as jail, the court ruled unanimously.

The district attorney’s office claimed the ruling buttresses its opinion that the private program violates state law.

“We believe the placement of a prisoner into the control of an unknown private business entity is illegal and fraught with peril,” said Lou Boyle, a deputy district attorney and former judge. “There is no control. Nobody knows where the money goes. Why judges want to place prisoners in uncontrolled situations like these is beyond me.”

The district attorney’s office has had similar problems with private work furlough programs, in which convicts pay for their stay in a dormitory setting while being required to work. Like private home detention, private work furlough is largely unregulated. In recent months, county supervisors have taken steps to begin monitoring of the program.

But private home detention is still not regulated. Only one company in San Diego County--Electronic Supervision Services of La Mesa--runs such a program and it supervises 40 inmates, like Harlan, without a county contract.

The company allows those enrolled to pay $15 a day to wear an electronic bracelet that is monitored by a private company out of La Mesa called Electronic Supervision Services. Other services, such as drug and alcohol tests, are $15 to $30 per person per month.

Judge May had originally sentenced Harlan in April to the Sheriff’s Department-operated home detention program. When Sheriff Jim Roache discontinued the program in June due to budget cuts, May ruled that Harlan be admitted to private home detention.

May further ruled that because men could be admitted to a county-operated home detention program--and there was none for women--the county had violated equal protection laws.

In the decision last month by the 4th District Court of Appeal that reversed May’s order, it also ruled that the judge did not hold a full hearing on the equal protection argument.

Until Harlan is resentenced later this month, she is on probation. She has spent only two days in County Jail.

Contacted last week, May said he would not comment on a pending case and that he may have to rule on other matters of law related to private work furlough programs.

Those in the private home detention program are not supervised by either the Probation Department or the Sheriff’s Department.

Although ESS sends a monthly report of those in its program to the Probation Department, the sentencing judge, the defense attorney, and, if requested, the district attorney’s office, no law enforcement agency checks on the validity of those reports, officials say.

“Nobody is looking over their shoulders to make sure they’re doing anything,” said Vicki Markey, deputy chief probation officer.

Though some of those felony cases assigned to ESS have probation officers assigned to them, the Probation Department does little more than check annually to make sure the felons have not been rearrested during the previous year.

“If anyone gives you the impression that we are supervising ESS cases, they’re wrong,” Markey said.

Yet in a letter introduced into court during Harlan’s proceeding, the branch manager of the ESS La Mesa office gives the impression that the county asked ESS to accept offenders into its program after the Sheriff’s Department shut its own home detention service down.

“San Diego County will be suspending its Electronic Surveillance Program for women the end of this month,” wrote Susan Chance last June 17. “ESS has been contacted and asked to absorb their current caseload. All defendants have been pre-screened by the county and are eligible for ESS.”

Dick Ariessohn, the supervising correctional counselor for the Sheriff’s Department, said sheriff’s officials never sent offenders to the private program. At the time the sheriff’s program ended, he said, only six women were left in the program and all were sent back to jail.

ESS and other private programs have “an inherent conflict of interest,” Ariessohn said, because they rely on payment from offenders to keep their business going.

“I know that some of these places have good motivations but anyone can get a conditional use permit and set up a half-way house or some other business in the county,” he said. “If a judge has some contact with the business, he or she will send someone there. It all has to do with how a judge feels about a certain program.”

Ariessohn, like members of the district attorney’s office, are troubled by a system in which someone is kept out of jail based on their ability to pay.

“I talked to a woman who said she had been accepted into ESS and while she was glad, she didn’t know how she was going to pay for it,” Ariessohn said. “She said she was going to get her parents to take a second mortgage out on their house.”

In Harlan’s court hearing, the district attorney’s office said private programs violate laws of equal protection because only “non-indigent” offenders can afford to be enrolled.

Stephen Alley, vice president of marketing for the company, said nobody who qualifies for the program is turned away because they can’t afford it.

Those who make more money are charged a bit more and those who make less don’t have to pay as much, he said, although the payment averages $15 a day. All that is required is someone have a home and telephone.

According to it brochures, the 5-year-old ESS is based in Torrance with seven other branches in California and locations in Nevada, Montana and Alaska.

Its monthly report for August shows that ESS had 40 people in the program who were serving time at home for offenses ranging from drunk driving and grand theft to welfare fraud and possession of drugs for sale.

The program is similar to that operated by the county probation department for men. An electronic bracelet is placed around an offender’s leg, which transmits a radio signal to a device hooked to the offender’s home telephone. The signal range is 150 feet.

If an offender leaves the signal range, a message is sent to the company. ESS employees also make random checks of offenders at their homes. Offenders must check in with ESS weekly, the brochure says.

Company officials tout their program’s assistance in easing jail overcrowding, making offenders pay their own way, helping convicts keep their jobs and a way to escape jail.

“We feel strongly that people who get themselves into difficulty must contribute financially and timewise in the process of their own rehabilitation,” Alley said.

The company is one of three vendors holding a contract with the Los Angeles County Probation Department, which in turn will audit and supervise and screen offenders in the program beginning later this month.

Alley said the company has sought a similar contract with the San Diego County Probation Department, but talks have never resulted in anything concrete.

“We want high standards for house arrest,” Alley said. “We have publicly acknowledged that we want to be audited and inspected. We don’t even need an exclusive contract; just the capability for them to audit and screen for us.”

G. Anthony Gilham, an El Cajon attorney who represents Harlan, declined comment about his client.

Her probation report filed in February, however, says that Harlan took her first drink at 15 or 16, primarily Boone’s Farm wine during weekend parties. She lost her children in a custody battle in 1987, the report says, and started drinking a pint of alcohol a day.

She told her probation officer that following her December, 1990, accident, she had had 1 1/2 pints of Scotch.

In considering circumstances supporting probation, her probation officer said Harlan had expressed remorse, a willingness to comply with the conditions of her probation, had strong ties to the community and a 17-year work history. Time in state prison, the report says, could result in “serious repercussions.”

On the other hand, the probation officer said, Harlan had three previous drunk driving convictions and despite being given probation in each, was “unable to utilize that ‘chance’ to change her life and refrain from alcohol abuse.

“There is a great likelihood that if the defendant is not imprisoned,” the officer wrote, “she will continue to drink and drive, thereby endangering everyone on the road.”