House Arrest vs Jail – How are they different?

House arrest is different from jail in that you would be confined at home, rather than in a state prison or county jail. Both types of confinement can be used for pre-trial or pre-sentencing, or as a prison term. While house arrest is less confining, the rules are strict. Not everyone is eligible for house arrest, though.

What is house arrest?

House arrest is a type of confinement. Rather than being held in jail or prison, though, you are confined to your home. To make sure that you do not leave, you are monitored around the clock. This is usually done through an electronic monitoring device, like an ankle bracelet. Other terms and conditions of house arrest can be fairly strict. Violating one of those terms can lead to house arrest being revoked, sending you to jail.

You may still be allowed to leave your residence. However, this has to be approved beforehand by a judge. There is often a curfew, as well. For example, if you have a job, you may be allowed to go to work for your shift. You may even be allowed to run errands, though often only under supervision.

Because the home is far more comfortable than jail or prison, house arrest is generally seen as the best type of confinement. I strive to get my clients into this type of alternative sentence.

How is it different from jail?

The fundamental difference between house arrest and jail is that you are held at home, rather than behind bars. This fundamental distinction, though, leads to numerous other differences, as well. For example, you may be able to:

• see family,
• go to work,
• go to school,
• attend religious services at your church of choice,
• see your regular doctor or counselor for medical appointments, and
• perform community service requirements.

In jail, you will generally not be allowed to do any of these things, or will have very limited rights. For example, on house arrest you can have family or friends visit you under the terms of your confinement. In jail, however, you have very limited visitation rights.

However, you will often have to pay the costs of your house arrest monitoring. This usually includes an initial fee to set up the electronic surveillance device, and then a daily fee after that. Each jurisdiction has its own rate. However, setting up the monitoring equipment for house arrest is often more than $100, and daily rates for the monitoring service can be as high as $50 per day. This can be prohibitive for many people, though some locales subsidize the costs if you have low incomes.

Additionally, some jurisdictions do not give good time credit if you are under house arrest. In these locales, if you are serving 6 months in jail for a criminal case, you may be released before all 6 months have been served, if you accumulate enough good time credits. Though if you are serving 6 months of house arrest, you may have to spend the entire sentence in confinement.

Am I eligible for house arrest?

Generally, you are eligible for house arrest only if you are a nonviolent offender. The eligible crimes also tend to be low-level offenses, like misdemeanors. As a first-time offender, you are more likely to be confined to house arrest than repeat offenders or people with a criminal background. Judges are usually given a lot of discretion over whom to put under house arrest.

Because judges have a lot of discretion, there are few bright-line rules. Instead, numerous factors may be considered. These can include:

• your prior criminal history,
• the specific type of criminal charge that has been filed,
• whether you have a low risk of fleeing,
• whether you have a history of substance abuse,
• your employment status,
• whether you have a family to take care of, especially if you act as the primary home caregiver to an elderly family member or a child,
• community engagement, and
• your age.

I use these factors to argue for house arrest, rather than a jail term. However, house arrest is often only an option for the following types of criminal offenses:

• white-collar crimes like credit card theft (Penal Code 484(e) PC),
• crimes of fraud, like check fraud (Penal Code 476 PC),
• petty theft (Penal Code 484 PC), or
• driving under the influence, or DUI (Vehicle Code 23152(a) VC).

If you are facing charges for a violent crime, you are usually ineligible for house arrest.

At what stage in the criminal process is house arrest an option?

House arrest can be used for pre-trial release, to hold you if you have already been convicted of a crime until your sentencing hearing, or as a substitute for jail time. However, home confinement is likely more common early in the criminal justice process.

How does it work in California?

In California, house arrest is called home detention.¹ It is a form of probation. You can request that your jail sentence be served under home detention. The probation department has to approve the request.

You have to wear a global positioning system (GPS) device. This device usually comes in the form of an ankle monitor that transmits your location 24 hours a day. The location of any pre-approved activities, like work or school, is provided to the probation department. Non-emergency variations to the routine generally require prior approval. A probation officer may have to accompany you on these trips.

Breaking a rule of home detention in California is considered a probation violation. It will trigger a probation violation hearing. The judge at the hearing can reinstate home detention, modify the terms of house arrest, or revoke it. In many cases, the judge will revoke home detention and send you to jail to serve the rest of your prison sentence.

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