The movement to reform bail practices and thereby shrink jail populations could lead to a harmful over-reliance on electronic monitoring.
Nearly half a million people who have not yet been convicted of a crime are locked up in jails across the country as they await court hearings, many because they can’t afford to pay bail.
As America’s cash bail crisis has become a hot topic, electronic monitoring is seen as a possible solution—despite potential downsides.
Electronic monitoring involves the use of an ankle bracelet to track a person’s location, and is used as a condition of parole and probation, in the wait before court hearings (often called “pretrial”), and in immigration cases.
According to a 2016 research study from Pew Charitable Trusts, the number of electronic monitoring devices in use in the United States has more than doubled over a decade, from 53,000 in 2005 to 125,000 in 2015. (These numbers do not include those being monitored on immigration cases, a figure that has also grown considerably.)
Some see the expansion of electronic monitoring as a positive development. Barry Latzer, emeritus professor of criminal justice at John Jay College of Criminal Justice, recently called electronic monitoring as a condition of pretrial release or parole “the future of criminal-justice reform” in the United States.
Critics argue that there has been little reliable research on the effectiveness of electronic monitoring at the pretrial stage.
The argument for using electronic monitoring is that it will improve public safety and return rate for court appearances, while being far less punitive and costly than holding someone in jail. A large Florida State University study claimed there was a significant reduction in “failure”—defined as re-arrest for new crimes, technical violations, as well as absconding—for those under electronic monitoring, as compared to other forms of supervision.
But critics argue that there has been little reliable research on the effectiveness of electronic monitoring at the pretrial stage, and researchers have pointed to the need for additional high-quality studies to assess the impacts of electronic monitoring.
For most people, there’s no question that being at home under electronic monitoring is preferable to jail. Still, monitoring can be burdensome.
“From a legal standpoint, in the pretrial phase practices must weigh in favor of liberty,” the Pretrial Justice Institute wrote recently. “Moreover, when conditions of release are set, they must adhere to the principle of least restrictive conditions—not ‘it’s better than being in jail.’ ”
There is a risk that courts will use electronic monitoring as a condition of pretrial release, even when other, less onerous conditions and services—such as court reminders and check-in phone calls—would suffice.
Earlier this year, 2017 Soros Justice Fellow James Kilgore and the Center for Media Justice launched a “Challenging Ecarceration” campaign to raise awareness about electronic monitoring, calling it a “form of technological mass incarceration.” The group also released guidelines for respecting the rights of people being monitored.
“When conditions of release are set, they must adhere to the principle of least restrictive conditions—not ‘it’s better than being in jail.’”
Kilgore’s perspective is shaped by both his research as well as his own experience being electronically monitored. He cites several problems with electronic monitoring, including that the conditions are left up to arbitrary rules in a particular jurisdiction, or even to the discretion of individual officers.
“The default position in most instances is house arrest,” Kilgore has written, which often makes it difficult for people to hold a job, seek medical care, or participate in important family activities.
And the rules are often unclear, even to those being monitored. The Chicago Community Bond Fund has shared stories of those impacted by electronic monitoring, including several who weren’t informed of the rules governing them until after they had been broken. Cherise Fanno Burdeen, CEO of the Pretrial Justice Institute, describes how these violations can cause a “spiralling of new charges” which can draw people further into the criminal justice system.
The conditions of electronic monitoring can harm families, have long-term negative consequences and, like being detained on bail, can factor into a defendant’s decision to plead guilty. Lavette Mayes of Chicago, now a volunteer with the Chicago Community Bond Fund, has written about her experience of being released to pretrial electronic monitoring after spending over a year in jail.
“Knowing I was on electronic monitoring, my kids lived in a constant state of fear and knew at any moment that I could be snatched away from them,” she wrote, “My daughter was in high school, but I wasn’t able to see her in school plays, let alone take her to school. My son would ask me about my ankle bracelet, ‘Why are they doing this to you? Why did they put that on you?’ . . . I decided I couldn’t keep fighting the case. If I could take a plea deal and make it all end, things would be better.”
Another problem is that, in many jurisdictions, the time being monitored is not credited as “time served.” In other words, while someone who is detained in jail pretrial would often have that time counted towards a sentence, this may not be the case with electronic monitoring.
And, as Kilgore points out, people in jail have access to food and a certain level of medical care. There are no such rights for people being monitored, even when they’re held on house arrest with no ability to earn an income.
Finally, electronic monitoring pretrial is often described as a way to save money, as the cost of monitoring is generally much lower than incarcerating someone. Yet that cost is often borne not by the state, but instead by those being monitored.
According to a 2014 study by NPR, the Brennan Center, and the National Center for State Courts, jurisdictions in all but two states charge those on electronic monitoring for the use of the devices. These fees are often $5-20 per day, but can be much higher. San Francisco’s fee was $35 per day, until the city recently passed an ordinance to stop charging for electronic monitoring.
In many places, defendants who are unable to pay risk being incarcerated. In this way, the Kilgore and the Center for Media Justice argue, electronic monitoring “[shifts] the site and costs of imprisonment from state facilities to vulnerable communities and households.”
According to one expert, the vast majority of jurisdictions do not release information on the number of people being monitored.
According to Kilgore, the vast majority of jurisdictions do not release information on the number of people being monitored. In order to collect information, he sent Freedom of Information Act requests to dozens of counties in Illinois as well as in other states, but received data from only a small fraction of them. Burdeen says that the Pretrial Justice Institute is conducting a survey of 150 counties across the country, including questions on pretrial electronic monitoring, and will be releasing results later this year.
In Cook County, Illinois, community members have sat in on on public court hearings to record pretrial decisions. The observers found inconsistent practices among judges who set pretrial electronic monitoring as a condition, including a number of cases in which the county’s risk assessment tool recommended a less onerous method of supervision than electronic monitoring.
The guidelines proposed by Kilgore and the Center for Media Justice, endorsed by more than fifty criminal justice advocacy organizations, advise caution in using electronic monitoring as a “net-widening” surveillance tool. The danger, Kilgore says, is that a “new set of punitive practices gets institutionalized, and you have to fight another battle to get rid of it.”