GateHouse Media
July 13, 2019This week the Pennsylvania Supreme Court decided to weigh in
on the use of cash bail in the city of Philadelphia. In March, attorneys from
the American Civil Liberties Union filed a lawsuit on behalf of 10 inmates,
arguing that “bail magistrates in Philadelphia’s First Judicial District have
failed to consider alternatives to cash bail and have assigned cash bail to
people who are too poor to afford it.”
According to the Pennsylvania Capital-Star, ACLU Executive
Director Reggie Shuford said, “People who have not been convicted of a crime
are sitting in Philadelphia jails only because they are too poor to pay the
bail they’ve been assigned. The Philadelphia courts have effectively
criminalized poverty.”
As advocates scramble to find alternatives to pretrial
detention, one option may be as detrimental to the accused as incarceration.
The movement to overhaul cash bail by challenging the constitutionality
of jailing defendants pretrial, has pushed judges, prosecutors and law
enforcement to turn to electric monitoring as a “humane” and cost effective
substitute.
Electronic monitoring is a method of supervising an accused
pre-trial without housing the individual in a costly jail or prison. The defendant wears an electronic GPS monitor,
housed in an ankle bracelet, permitting court or law enforcement personnel to can
keep track of their movements. The monitor provides a layer of public safety
that doesn’t exist when a defendant is simply walking free pending trial.
States and cities incur the brunt of the costs for jails and
prison. In an effort to cut down on
government expenses, more and more local policymakers are passing the financial
burden of the monitoring devices onto those who wear them.
A recent investigation by ProPublica and the New York Times
cited a 2014 study by NPR and the Brennan Center that found, with the
exception of Hawaii, every state required defendants to pay at least part of
the costs associated with electronic monitoring.
As the cost of incarceration has soared, and state and local
budgets have shrunk, electronic monitoring—paid for by the accused—must have
seemed like a life preserver floating in a sea of government debt.
Yet as ProPublica and the New York Times suggested, “like
the system of wealth-based detention they are meant to help reform, ankle
monitors often place poor people in special jeopardy.”
Many local government agencies engage private entities to
operate and manage pre-trial monitoring programs. These for-profit entities
often charge defendants more over time than the cost of cash bail at the
outset. Private companies set their own rates and charge interest when defendants
fall behind in payments. Defendants can pay with a credit card or utilize
financing set up through the company and often rack up debt they can never
repay.
In some jurisdictions the expanding use of electronic
monitoring has outpaced court rules. Some judges do not, nor are they required
to, conduct hearings on a defendant’s ability to pay for private supervision
before assigning them to wear a bracelet rather than sit in jail.
It’s not only debt that can send defendants back to jail. Individuals
being monitored can be punished for breaking the rules that come with the
devices—things like curfew, use of alcohol or maintaining a job.
In 2011, then U.S. Attorney General Eric Holder stated that
keeping people awaiting court dates in county jails costs around $9 billion a
year. The urgency to address those costs and the concern that cash bail disproportionally
affects the poor has created a form of “debtor’s supervision.”
Today, eight years after Holder’s admonition, policymakers
risk further exacerbating the plight of the poor by forcing those merely accused
of a crime to choose between financial stability and freedom.
(Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by
McFarland Publishing. You can reach him at www.mattmangino.com
and follow him on Twitter @MatthewTMangino)
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