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An electronic ‘leash’

Monitoring case raises issues of who controls inmate’s fate

A case involving a convicted embezzler could resolve whether a sentencing judge has any say about the early release of a state inmate for home electronic monitoring.

Judith Brumfield of Gretna was convicted in 2006 of stealing from her employer, a local contractor. Sentenced to three years in prison and ordered to repay $80,000, she asked Judge Charles J. Strauss of the Pittsylvania County Circuit Court to allow her to serve part of her sentence on home electronic monitoring (HEM). According to attorneys involved in the case, the judge denied the request, observing that home electronic monitoring was not available in Pittsylvania County.

Brumfield did not stop trying, however. After she was transferred to the Department of Corrections, the Martinsville sheriff’s department agreed to take her into an electronic monitoring program. She returned to her home wearing the required ankle bracelet.

The current dispute arose when Brumfield was seen back in her community. Commonwealth’s At-torney David Grimes complained that neither he nor the court was given any notice that Brumfield would be released. “It was startling to me to learn that she was out,” he said.

One of Grimes’ deputy prosecutors was quoted as saying, “Clearly … she has shopped around and found someone who would let her out.”

Grimes does not object to Brumfield working to repay her victims, but he wants her to do her time as well. “In this case, the court decided she could serve three years and then pay restitution. She ought to pay restitution and be punished, too.”
Grimes’ office filed a motion to terminate Brumfield’s HEM program. Brumfield’s attorney, Altavista lawyer Aubrey Rosser, responded by objecting to the court’s jurisdiction.

Rosser pointed to the statute that allows judges to modify criminal sentences. Code § 19.2-303 expressly permits judges to suspend or modify felony sentences, but only until the defendant is transferred to a receiving unit of the Department of Corrections. After that, Rosser argued, the 21-day rule applies to bar any further jurisdiction of the sentencing court.
Rosser also argued that the judge could not order any changes unless the sheriff and the Department of Corrections were brought into the case.

Grimes responded by citing § 53.1-131.2, which appears to require notice to the prosecutor when an inmate is being assigned to a home monitoring program. He also complained that the Martinsville sheriff did not appear to be distributing restitution money as directed by the statute.

Strauss, as of this writing, has held two hearings. A third hearing was scheduled for Friday, May 23.

Brumfield’s original attorney on the criminal charge, Philip Gardner of Martinsville, says the release and restitution issues pose an interesting question: “What authority, if any, does a circuit court have over a defendant placed on home electronic monitoring [after transfer to] the Department of Corrections?”

A Richmond-area criminal defense attorney, David Hargett, commented that, according to his understanding of the law, a judge generally loses jurisdiction of the case once the offender is transferred to the Department of Corrections.

On a leash

The HEM program works like an electronic leash. According to the Department of Corrections, participating inmates wear a tamper-resistant transmitter on the ankle. A field monitoring device placed in the offender’s home keeps track of the offender’s movements.

The prison system itself does not run the HEM program. It allows inmates to be released to local jails where the sheriff agrees to administer HEM.

Martinsville Sheriff Steve Draper apparently takes advantage of the opportunity under Virginia law to get state inmates back to work, even inmates with no connection to Martinsville. According to the sheriff’s Web site, “We have a very strong Electronic Monitoring program …. When we have non-violent offenders to place on Electronic Monitoring, we not only require them to have a job, but we assist them in finding one. We also require them to pay their fine and court costs to the courts and they pay $10 per day to be on our program.”

Rosser says that Brumfield has been working and has not violated any terms of her release. “She works two part-time jobs to pay what she has to pay,” he said. Draper, the Martinsville sheriff, was quoted as saying, “She has been doing excellent in the program.”

The chief of offender management for the Department of Corrections, Gary Bass, says he is unaware of any other case where a prosecutor or judge took exception to the release of an inmate for a home electronic monitoring program. “It has not come to my attention before now.”

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