The monitor became a major obstacle to reconnecting with society. According to the rules of his device, he was only allowed out of the house Mondays, Wednesdays and Fridays from 9 to 5. If he got a job interview on a Tuesday, he had to call an 800 number and the operator would phone his parole agent to request permission for him to go out. Many times the agent simply didn’t reply. So Maurice stayed at home, anxious to find a job, but even more anxious at the prospect of being returned to prison. Things got worse. After a couple of weeks, his device kept losing the satellite signal the GPS needed in order to track his movements. When efforts to restore the signal failed, his parole officer told him he would have to find a new place to live within 24 hours. Maurice had to scramble and move in with an aunt who quickly let him know she didn’t want him around. Soon he had to relocate again.
He ran into more problems when he tried to enroll in a mandatory anger management class. All the free programs were on Tuesday and Thursday but his parole agent denied him movement, so he had to enroll in a one-day course held on Mondays. That program required a $100 fee which he was forced to pay. When occasions like his birthday, Memorial Day and Mother’s Day failed to fall on one of his movement days, he was left at home while the rest of the family celebrated at the park or the beach.
Ultimately, Maurice started to reflect on the quality of life under EM: “I’m free but actually am I free?” He concluded that the monitor was “like holding something over a dog’s nose, teasing him with food…like hitting the lottery and losing the ticket. You are still incarcerated, no matter how you look at it.”
According to a recent Pew Research Report, Maurice is one of some 125,000 people who are on an electronic monitor in the US in a given year because of an encounter with the criminal justice system. Some estimates put the figure higher. In 2005 only 53,000 people were on EM. With the present push toward decarceration in many states, the use of EM is likely to keep growing. Most devices now have GPS capacity, supposedly tracking the individual’s location in real time 24 hours a day. And it is not just people like Maurice who have served long sentences who are being monitored. The net for monitors has widened to include juveniles, individuals on pre-trial release as well as immigrants awaiting adjudication.
EM and Juveniles
Kate Weisburd, who runs the Youth Defender Clinic at the East Bay Community Law Center in Berkeley, told Alternet that many juveniles are on this technology for months and often end up “cycling in and out of juvenile hall not on new criminal charges but for technical EM violations.” Such violations include arriving home late from school or not phoning in at a required time. There are also technology issues. Most monitors have cellphone-like batteries that require charging every few hours. If the battery goes flat, a supervisor will be alerted as if the person is “out of compliance.” Weisburd argues that the problem with the devices in juvenile cases extends beyond such issues. She contends that “EM and the adolescent brain are a bad fit. Youth, more than adults,” she told us, “have limited ability to plan and deterrence rarely works with kids-both of which are key elements of any EM program.” She echoes the comments of Maurice about the impact on families. “Most families are already struggling to get by and EM adds additional requirements to their life, requirements that often have little relation to helping in the ‘rehabilitation’ of their child.”
Court cases have at least partially upheld Weisburd’s views. In Commonwealth of Massachusetts v. Hanson, for example, a court held that mandatory GPS could not be applied to juveniles with delinquency convictions. The ruling noted that juveniles should not typically be treated as criminals by the court but as “children in need of aid, encouragement and guidance.”
Pre-Trial EM
Likely the most common application of monitors is in pre-trial release programs. As the discourse in the criminal legal system increasingly moves toward reducing jail populations, many local jurisdictions are considering EM programs or expanding existing usage. In the spring of this year Philadelphia announced a six million dollar program to cut jail population, largely by releasing more people while they await judgement. More than 60% of those in the Philadelphia jail have not been convicted of a crime. As part of this process the city announced a request for proposals from EM providers to supply the city with about 2,000 ankle bracelets. However, grassroots activists and other analysts have expressed concern over the conditions that might be applied in such an EM program as well as the type of algorithmic formula that may be used to determine who gets released on EM. There is increasing evidence that such formulas contain deep-seated racial bias.
The experience of people in other jurisdictions where EM has long been used during pre-trial release bear out these fears. Chicago’s Cook County has the largest, longest standing pre-trial electronic monitoring program in the country. Since the inception of their EM program in 1989, authorities claim to have placed nearly 250,000 people on ankle bracelets. Yet activists from the Chicago Community Bond Fund (CCBF) told AlterNet that the restrictions for those on the monitor often mirror Maurice’s experience. The fund raises money to post bond for those who cannot afford even minimum amounts.
According to Max Suchan, a board member for the Fund, many of those who have been released through CCBF efforts have been placed on strict house arrest with a monitor. In some cases, the perimeter for allowed movement is so short that a person can “violate” by emptying their garbage in an outside container. CCBF has attempted to contest this by filing motions to have the monitors removed or conditions modified. They are awaiting a response from the courts. A further concern that Suchan noted is that many attorneys in Cook County report having clients on EM who face felony escape cases for tampering with the device. According to technology expert Shubha Bala, who has conducted extensive research on EM for the Center for Court Innovation in New York, a tampering alert can result from routine acts like putting on a sock or a high top shoe.
Lawyers involved in bond funds in Massachusetts have encountered similar challenges. Norma Wassel, currently the chairperson of the steering committee of the Massachusetts Bail Fund, spoke to Alternet about the problems linking access to release on EM to an individual’s economic and housing status. While release on a monitor for people awaiting trial offers many advantages over remaining in jail, people without an address or those living in shelters face serious challenges keeping the devices functional.
According to Wassel many shelters don’t provide access to outlets for charging monitors. For those without an address, the “house arrest,” which is the default position in most electronic monitoring programs, could not be implemented. This meant that a person could end up remaining in jail simply because their income didn’t provide them with enough money to pay for accommodation. However, lawyers successfully challenged this situation, winning a ruling which compelled the probation department to find a technological device that was workable in a person’s individual circumstances, regardless of their means. Though this is only applicable in Massachusetts, the ruling could inspire similar litigation in other jurisdictions, particularly since many devices require a landline phone to be operational.
EM’s Accuracy
While draconian regulations pose problems for many individuals, a little explored aspect of EM is the actual accuracy of the devices in pinpointing an individual’s location and movement. A number of cases have surfaced where individuals have been returned to custody for violating house arrest when their device incorrectly imported them as “out of bounds.” The most well-known of these was the 2013 case in Wisconsin in which 13 people reported false alarms to their monitors, many of which resulted in reincarceration.
Shubha Bala has done extensive testing of the accuracy of EM devices and found remarkable levels of imprecision. According to studies at her Center, EM devices often lose signal or issue inaccurate reports in dense urban environments without a clear view of the sky. Bala’s findings also reveal that the devices work much better when the individual is moving. Hence, there is often “location drift” at night when the person on the monitor is sleeping. This drift can lead to false reports of violation of house arrest. She spoke to Alternet about the problems such inaccuracy, combined with the excessive amount of data generated by GPS, posed for supervisors. She said one supervisor she interviewed told her that “the data overload is so extreme that their staff ends up ignoring a lot of the alerts. He said he can’t sleep at night for fear that one day one of those ignored alerts will be connected to a serious crime.”
Future Directions for EM
There is a clear-cut tension between using the EM as a mechanism for reducing jail population and ensuring that electronic monitoring doesn’t create a sort of mass e-incarceration, the costs of which will be born by the individuals on the monitors and their loved ones.
At least three things seem inevitable for the time being. The first is that the use of EM will grow and embody some forms of net widening-i.e. applied to new situations. The most obvious sphere for this to take place is in immigration cases. The rise in people from Central America seeking asylum in the US has been accompanied by an increased use of EM by Immigration and Customs Enforcement (ICE) for people who are not held in detention. The pressure to place such individuals on monitors or “grilletes” (shackles) as many Spanish speakers call them, comes largely from the companies that market the devices.
The biggest players in this market are private prison operator GEO Group, which owns BI incorporated, the largest firm in the EM industry, and Securus Technologies, a major target in recent campaigns for reducing charges for prison phone calls. Research showed that Securus earned some $114 million in revenue from such calls in 2014, often charging people up to a dollar a minute for a phone call. Securus has shored up its holdings in the EM sector by purchasing industry giant Satellite Tracking of People (STOP) along with two other EM firms in the past two years. The needs of these companies to shore up their bottom lines may prompt a more aggressive marketing pitch for EM, such as applying it to individuals completely outside the criminal legal system-those with histories of mental illness, substance abuse or accessing public benefits. The recent decision by the federal government to cut some contracts with private prisons places even more pressure on companies like GEO to unearth new markets.
Second, as the use and capacity of the devices expands, more and more location data will be accumulated and stored via highly unregulated processes. At present few regulations restrict access to this data or the length of time it is preserved. This poses serious concerns for those involved in work on the relationship between technology and personal freedoms. As Lee Tien, Senior Staff Attorney and the Adams Chair for Internet Rights at the Electronic Frontier Foundation told Alternet: “When law enforcement officials use GPS devices or other location surveillance technologies to systematically track where we are, they learn an extraordinary amount of highly sensitive information about who we are.” Tien expressed concern at the potential for this location data to be shared with private companies or government agencies.
Moreover, he noted the possibility for EM’s application in the ever expanding assortment of algorithm-based risk assessment tools which are often used to determine a person’s likely involvement in a crime, their sentence or charges if convicted. Ironically such algorithms may even determine whether they should be eligible for being placed on an electronic monitor. On this question, Bala poses an alternative perspective, “the information from EM – location data as well as alerts indicating non-compliance – shouldn’t be used alone to reincarcerate someone but should instead be a tool to help supervisors know what questions to ask.”
Electronic monitoring has largely remained off the radar of researchers, activists and policy makers during its more than three decades of application in the criminal legal system. This is changing. The Pew Research Center has established a working group on the issue and the Center for Media Justice (CMJ), a leading force in the successful campaigns for net neutrality and prison phone justice, are also adding a focus on EM. As organizing director Steven Renderos stressed to Alternet, CMJ is beginning to investigate the use of electronic monitoring as a technology in the criminal legal system, “exploring the extent to which EM both inhibits personal freedom and represents a new frontier to compile surveillance data.”
