Despite the "law and order" vows of Attorney General Jeff Sessions, states and counties continue to take steps to reduce prison and jail populations. Last month, Cook County, Illinois initiated its own special court dedicated to setting bond for people with felony cases. The mandate of the court is to set bond at a level the charged individual says they can afford. In California, meanwhile, the SB10 bail reform bill has passed the Senate and appears likely to become law in the coming year. SB10 would greatly reduce the use of cash bail, freeing thousands of people currently awaiting trial. California is one of eight states currently considering such legislation. At the federal level, Senators Kamala Harris and Rand Paul have co-authored legislation that would provide incentives to states that implement bail reform.
Such efforts have been inspired by grassroots movements calling attention to the injustices of money bond, and have drawn funding and policy development support from nonprofits like the Pretrial Justice Institute and the MacArthur Foundation. The main argument for bail reform is that people who are presumed innocent should not be kept in jail simply because they lack money for a cash bond. Reformers contend that releasing people with no cash bond or an affordable bond will allow them to keep their jobs, hold onto their housing, carry out caregiving responsibilities and more effectively mount a legal defense.
The punitive nature of most electronic monitoring regimes is crystal clear.
In addition to bail reform, early release programs are expanding at the state level. Most recently, Oklahoma, which has the second-highest per capita incarceration rate among states and the highest for women, is looking at releasing 1,500 people defined as low-risk from prison within the next few months.
While such measures are likely to reduce incarcerated populations, nearly all of these initiatives have an unacknowledged Achilles heel: uncritical acceptance of electronic monitors (EM) as an alternative to incarceration. Typically taking the form of ankle bands and house arrest, monitors are gaining lots of traction in reform packages. In its second week of operation, Cook County's new bond court released one out of eight people who appeared on EM. On some days, it was nearly one in three. In 2016 Philadelphia authorities opened a bidding process to contractors to supply more than 2,000 monitoring devices in 2016, in anticipation of bail reform and pre-trial release. Similarly, Oklahoma plans to place all 1,500 early-release candidates on monitors. Although the immediate financial arguments for EM might make sense, these moves ignore the impact of the monitors on people's lives and the implications of their expanded use for the future of mass incarceration.
In many instances, unauthorized movement in response to an emergency can lead to re-incarceration.
While monitors have been around for more than three decades, remarkably little research has been done on their impact. Despite this lack of evidence of its effectiveness, EM has become a preferred option because it is convenient to implement, exerts control over criminalized individuals in the name of "public safety" and saves the state money. Apart from these factors, leading firms in the EM market, like private prison operator GEO Group and carceral phone provider Securus Technologies, have escalated promotion efforts.
Before electronic monitors become part of the DNA of the criminal legal system, we need a deeper exploration of this technology and its impact.
To begin with, there is a lack of legal consensus about whether electronic monitoring constitutes a form of incarceration. Most states say no. This means that if a person spends time on a monitor during the pretrial phase and they end up being sentenced to prison, time spent on the monitor is not deducted from their total sentence. By contrast, time spent in jail is deducted. There are exceptions. Illinois statutes give credit for time served on home detention in most instances but actual practice presents contradictions. One Illinois case judgement differentiates between electronic monitoring categorized as "home supervision," which is pre-trial release, and electronic monitoring categorized as "home detention," which is part of a sentence. People who've spent time on "home supervision" do not receive credit as time spent in incarceration, whereas those on "home detention" do, though both have essentially the same conditions. Washington case law only provides credit for a person with a felony case, not for someone with a misdemeanor. In recent years, many states have categorized tampering with or removing an electronic monitor as a felony escape charge, even though being on the device is not categorized as being in custody.
At least 10 states allow for lifetime GPS monitoring for certain categories of offenses.
While legal definitions may remain murky, the punitive nature of most EM regimes is crystal clear. In most instances, individuals on a monitor must request permission from a judge or probation officer to get "movement" from their home. The purpose of movement and the precise time out of the house need to be specified. Moreover, monitoring regimes rarely state that a person is "entitled" to or has a "right" to be granted movement. My survey of dozens of monitoring contracts at both state and local levels revealed that only the Texas Department of Criminal Justice offered a detailed list of permitted movements for a person on a monitor. These included tending to "daily living needs," such as grocery shopping, laundry, banking, haircuts and obtaining clothing. Texas also grants eight hours of movement on 10 designated holidays. While these may seem minimal, they are extraordinary. Most states' regulations either leave decisions up to the discretion of supervisors or contain highly restrictive conditions. Northwest Ohio, for example, only allows two hours of movement on just two holidays: Christmas and Thanksgiving, and grants movement to do laundry or shopping only if no one else in the house is available to do it. In many instances, unauthorized movement in response to an emergency can lead to re-incarceration. In one notorious Michigan case, Kent Shultz was on a monitor when his apartment caught fire. Although he called authorities as soon as the fire started to inform them of his "unauthorized movement," a warrant was still issued for his arrest. He ended up spending several hours in jail the next day before being released.
The increased use of GPS-enabled devices, which track and record an individual's location, compound problems with regard to movement. By contrast, devices using the older radio frequency technology only indicate if a person is at home. According to a 2016 Pew Research report, GPS-based devices constitute about 70 percent of the roughly 150,000 electronic monitoring devices in current use. With GPS, monitored individuals typically must submit a schedule of all their movements a week or two in advance. Normally, each movement listing must include the address where a person intends to go and how long they will spend there. Some GPS devices program in "exclusion zones," so that an alarm is sounded if a person enters a forbidden area of the city. Exclusions zones are most frequently applied to those with sex offense convictions (excluded from being near parks, schools and child care facilities) and individuals with alleged gang histories (excluded from "gang territories"). At least 10 states allow for lifetime GPS monitoring for certain categories of offenses.
The Experience of EM: The Voice of the Monitored
In the absence of meaningful studies of the impact of electronic monitoring, policy makers and activists would do well to examine the stories of those who have experienced EM. While legislators and legal scholars may debate whether house arrest constitutes incarceration, few people who have been on an ankle monitor equivocate on the issue. Johnny Page, who spent 90 days on a monitor after serving over 23 years in Illinois prisons, summed it up for Truthout: "It's like being locked up but you're paying your own bills. You get to feed yourself, you don't have to fight for the telephone, you don't have to fight for the shower, but you're still in jail." Edmund Buck, who also spent more than two decades in Illinois state prisons, said that under EM "you definitely feel the long arm of the law on your shoulder ... there's no real sense of freedom."
Topeka K. Sam was placed on a monitor in New York City after serving a term in federal prison. In our interview, she referred to the device as a "shackle" rather than a "bracelet." She said the shackle was "suffocating," and called EM "transincarceration ... moving people from "inside the prison walls to inside these prison walls in the community ... and it does not reduce harm." Shaun Harris, on a monitor for a year in Lansing, Michigan, echoed these views: "All you did was switch from a prison setting to a housing setting, which is now your new cell ... you're not really free when you got the monitoring system."
Monitoring conditions permit parole or probation officers to search a person's residence or workplace any time of the day or night without a warrant.
The experience of Father David Kelly, who directs a restorative justice center for youth in Chicago's South Side, raises another concern. He told Truthout that a number of youth participants in his programs are on monitors. He says the majority end up violating the strict house arrest terms of EM and get sent back to jail. In his view, this is not due to irresponsibility on their part. Rather, authorities operate under false assumptions that staying at home will shield these young people from the "temptations" of the streets. "Their houses are not stable," Father Kelly told Truthout, "not places where you have your own bedroom you just go to and there's a lot of privacy." Kelly says what puzzles him is that youth are often placed on monitoring "without giving it much thought." He cites cases of individuals being put on house arrest who don't even have a residence, or whose loved ones live in public housing where local housing authorities do not allow monitors.
A common argument for pretrial release on monitors is that it removes the pressure to accept a plea bargain simply to get out of jail. However, the case of Chicago's Lavette Mayes highlights that extreme versions of house arrest can create a similar degree of coercion. For Mayes, being out on an electronic monitor was supposed to enable her to fight her case while looking after her two children. However, her rules were so strict she couldn't even take out the garbage without explicit permission. Mayes finally opted to halt her legal battle and plead guilty to a felony, her first ever such conviction. Ultimately, she said the pressure on her family compelled her to take the deal, especially since she was staying with a relative. She recalled how during searches of the house, the sheriffs forced her hosts to throw out any alcohol and even remove their pets. "The people who have not done anything are constantly being incarcerated with the person," she said. "Whoever lives in that house is being policed in that jail." Since resolving her case, Mayes has become an active member of the Chicago Community Bond Fund, an organization that advocates for bail reform but also attempts to limit the harm done by EM.
EM and Work
One of the other key selling points of electronic monitoring is that it allows people to work while on house arrest. But terms and conditions of monitoring often render employment difficult. For individuals on GPS, jobs that include multiple work sites like gardening, house cleaning, construction or delivery are typically verboten since EM supervisors require employers to verify every location where a person works and the precise time they will be at a specific address. Even when people do find employment, problems frequently arise. Edmund Buck succeeded in finding a night shift job and was told he would not be allowed to work after sunset. Augie Torres gave up looking for work because his efforts to secure movement to attend interviews were so frequently unsuccessful. He said he got a job within a week after being released from EM. Although Topeka K. Sam was able to secure employment while on the monitor, she said several friends of hers were refused jobs while on the "shackle." Some employers simply told them, "Come apply when it's gone."
User fees have become increasingly common for electronic monitors, with daily tariffs sometimes reaching as high as $25.
Employment challenges are compounded by the regimes of intense supervision that often come with EM. Monitoring conditions permit parole or probation officers to search a person's residence or workplace any time of the day or night without a warrant. For Sara, who preferred not to use her last name, being on a monitor in Eau Claire, Wisconsin, cost her a job after her probation officer phoned her employer, revealed that she was on EM, and cautioned the employer that they "didn't usually let people like Sara work." Her employer fired her. Once this happened, she said her first reaction was, "I'm cutting this thing and running," but she kept looking for work, finally landing a job that paid three dollars an hour less than her previous position.
Paying for EM
Her reduced wages left Sara struggling to confront another of the major hurdles of electronic monitoring: fees and set up charges. At the time, Sara was paying $600 a month for monitoring fees, as much as she paid for her rent. In addition, as is true for many people on monitoring devices, she was required to have a landline phone. User fees have become increasingly common for electronic monitors, with daily tariffs sometimes reaching as high as $25. An NPR survey in 2015 revealed that jurisdictions in 49 states imposed fees for electronic monitoring. My own research in 40 counties in Illinois revealed fees ranging from $10 to $15 a day with set-up fees up to $70.
In fact, "self-financing" is one of the major marketing tropes for EM providers, promising to save money for state and local governments. Sentinel Services, one of the major EM providers in California, prides itself on having "pioneered the first participant funded program model." 3M, a major EM provider advertises their "Offender Pay System" as "easy and convenient to use." Offender Pay allows people on monitors to pay online via phones or mobile apps.
The Future of EM and Bail Reform
Stories of people who have been on electronic monitors reveal an enormous gap between lived experience and the vision of policy makers, service providers and some bail reform advocates. As a study by the Prison Policy Initiative showed, most people who are incarcerated in the US are poor, disproportionately Black and Brown. Even if they are released on bond with EM, they are not going back to stable households or steady, living-wage employment. The majority return to poverty and instability. Being "free" on bond with EM does not help them sustain a life that is already working well, but delays the inevitable, and perhaps adds extra sets of financial and emotional stressors for them and their family.
Rebecca Brown, who has studied juvenile electronic monitoring extensively in parts of the San Francisco Bay Area, rejects the notion that the alternatives are "lock 'em up or hook 'em up." Like Topeka K. Sam, Brown looks at EM not as intrinsically leading to decarceration, but rather as "an insidious new form of incarceration" that uses "high-tech shackles" to convert public and community spaces into "open air prisons." She also views monitors as tools of privatization, shifting responsibility and authority to companies that provide punitive services like probation and electronic monitoring while squeezing the payment for these from impoverished people of color.
In Philadelphia, Soros Justice fellow and long-time activist Hannah Sassaman expresses similar concerns. She is involved in an in-depth study of the risk assessment tools that typically determine whether a person is released on EM or remains in jail. Sassaman worries that these allegedly "race-neutral" algorithms disproportionately impact people of color. Furthermore, she argues that policy makers often try to ignore stories of individuals who experience the punitive nature of EM by casting them as "outliers" or "exceptions to the rule." In fact, she asserts, "they are the rule."
For her, the solution is to move toward more "transparent processes" that involve those directly impacted. She cites the possibility, for example, of bringing together individuals who have been on a monitor, people involved in racial justice work and policy makers to consider how risk assessment and EM allocation might reflect "racialized factors." She maintains such a process could help address inequalities.
Meanwhile, it's clear that EM is not an effective route to reducing the volume of people who ultimately get caught up in the system. Real decarceration requires more participatory policy making processes and the allocation of resources to employment opportunities, mental health services, substance abuse treatment and more public housing, alongside powerful anti-racist campaigns.
For Topeka K. Sam, electronic monitoring does not ultimately hold the key.
"If you're talking about decarceration, there are other ways to do that," Sam said. "This is not it."