GateHouse: Electronic monitoring the illusion of safety

Matthew T. Mangino

GateHouse Media

October 18, 2019

The criminal justice system is in the midst of a seismic shift in priorities. Ideas that not so long ago would have been considered radical are now mainstream.

Change can be positive, but it can also have unintended consequences. Electronic monitoring is a prime example. Electronic monitoring was introduced in the 1960s. Ralph Gable, a student at Harvard University patented a device derived from surplus military tracking equipment to verify his teacher’s theory of positive reinforcement.

Ironically, Gable’s foray into electronic monitoring was intended to do the opposite of what it does today. Gable used monitoring to reward probationers who followed the rules, as opposed to today’s focus of penalizing noncompliance.

Politicians on both sides of the aisle have joined in the condemnation of incarceration rates. America incarcerates more people for longer periods of time than nearly every other country in the world. Lawmakers have looked to electronic monitoring as a safe and cost-effective alternative to prison and jail. The use of monitors increased dramatically between 1980 and 2016. According to the Pew Charitable Trusts, probation and parole populations grew by 239% during that period.

Ralph Gable’s brother Paul Gable wrote, “Monitoring provides a convenient sentencing alternative because it is a punishment less harsh than incarceration but more strict than minimally supervised probation.”

The “reform” brought about by electronic monitoring has brought about new problems.

For instance, using electronic monitoring to supervise people while awaiting trial. Many criminal justice practitioners malign the cash bail system as unjust and particularly harmful to the economically disadvantaged.

A defendant is faced with posting bond in the amount of $5,000. He may have to choose between paying a surety bond of $350 or pay for installation and monthly rental of an electronic monitor.

The initial monitoring fee is $100, plus $50 per month to rent the monitor. After six months, the monitoring cost has exceeded the bond amount. If a defendant fails to pay one month, she may have her bond revoked ending up where she started - in jail. She may also have her bond revoked for drinking, or not working - things that wouldn’t otherwise affect someone on a straight monetary bond.

When it comes to bail, judges are a little gun-shy. Bail is not a big deal until a case goes bad. A defendant on bail awaiting trial harms another person. Electronic monitoring is a convenient fall back for judges. If a defendant harms an innocent person while awaiting trial, a judge can point the finger at the probation office or private vendor who is “supervising” the defendant.

The concern doesn’t stop pretrial. After sentencing, an offender may be put on electronic monitoring in lieu of incarceration. Those costs will be added to the court cost and fines, often burying a parolee in debt. Samantha Malamed of the Philadelphia Inquirer recently wrote about a Philadelphia woman on her 15th year of probation for a 2003 theft - her only criminal conviction.

Malamed wrote, ”‘Case to close once restitution is paid in full,’ the docket noted, ordering payments at a rate of $75 per month toward a total of $40,939. If she continues paying at that rate, she will remain on probation for an additional 45 years, until she’s 104 years old.”

The criminal justice system itself creates a cycle of poverty that is nearly impossible to overcome.

What’s worse is who is monitoring the electric monitor? A monitor can be used to recreate an offender’s location or even alert someone when the offender goes to a forbidden location, but it would literally take a workforce of thousands to monitor offenders in real time, in any meaningful way.

According to Ava Kofman writing in ProPublica, “Critics of monitors contend that their public-safety appeal is illusory: If defendants are intent on harming someone or skipping town, the bracelet, which can be easily removed with a pair of scissors, would not stop them.”

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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GateHouse: Pre-trial electronic monitoring as onerous as cash bail

Matthew T. Mangino

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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Electronic monitoring creates a sort of debtor's supervision

Over the past half-century, the number of people behind bars in the United States jumped by more than 500%, to 2.2 million. This extraordinary rise, often attributed to decades of “tough on crime” policies and harsh sentencing laws, has ensured that even as crime rates have dropped since the 1990s, the number of people locked up and the average length of their stay have increased, reported ProPublica and the New York Times.

According to the Bureau of Justice Statistics, the cost of keeping people in jails and prisons soared to $87 billion in 2015 from $19 billion in 1980, in current dollars.

In recent years, politicians on both sides of the aisle have joined criminal-justice reformers in recognizing mass incarceration as both a moral outrage and a fiscal sinkhole. As ankle bracelets have become compact and cost-effective, legislators have embraced them as an enlightened alternative. More than 125,000 people in the criminal-justice system were supervised with monitors in 2015, compared with just 53,000 people in 2005, according to the Pew Charitable Trusts. Although no current national tally is available, data from several cities — Austin, Texas; Indianapolis; Chicago; and San Francisco — show that this number continues to rise.

Last December, the First Step Act, which includes provisions for home detention, was signed into law by President Donald Trump with support from the private prison giants GEO Group and CoreCivic. These corporations dominate the so-called community-corrections market — services such as day-reporting and electronic monitoring — that represents one of the fastest-growing revenue sectors of their industry.

By far the most decisive factor promoting the expansion of monitors is the financial one. The United States government pays for monitors for some of those in the federal criminal-justice system and for tens of thousands of immigrants supervised by Immigration and Customs Enforcement. But states and cities, which incur around 90% of the expenditures for jails and prisons, are increasingly passing the financial burden of the devices onto those who wear them. It costs St. Louis roughly $90 a day to detain a person awaiting trial in the Workhouse, where in 2017 the average stay was 291 days. When individuals pay EMASS $10 a day for their own supervision, it costs the city nothing. A 2014 study by NPR and the Brennan Center found that, with the exception of Hawaii, every state required people to pay at least part of the costs associated with GPS monitoring. Some probation offices and sheriffs run their own monitoring programs — renting the equipment from manufacturers, hiring staff and collecting fees directly from participants. Others have outsourced the supervision of defendants, parolees and probationers to private companies.

“There are a lot of judges who reflexively put people on monitors, without making much of a pretense of seriously weighing it at all,” said Chris Albin-Lackey, a senior legal adviser with Human Rights Watch who has researched private-supervision companies. “The limiting factor is the cost it might impose on the public, but when that expense is sourced out, even that minimal brake on judicial discretion goes out the window.”

Nowhere is the pressure to adopt monitors more pronounced than in places like St. Louis: cash-strapped municipalities with large populations of people awaiting trial. Nationwide on any given day, half a million people sit in crowded and expensive jails because, like Daehaun White, they cannot purchase their freedom.

As the movement to overhaul cash bail has challenged the constitutionality of jailing these defendants, judges and sheriffs have turned to monitors as an appealing substitute. In San Francisco, the number of people released from jail onto electronic monitors tripled after a 2018 ruling forced courts to release more defendants without bail. In Marion County, Indiana, where jail overcrowding is routine, roughly 5,000 defendants were put on monitors last year. “You would be hard-pressed to find bail-reform legislation in any state that does not include the possibility of electronic monitoring,” said Robin Steinberg, the chief executive of the Bail Project.

Yet like the system of wealth-based detention they are meant to help reform, ankle monitors often place poor people in special jeopardy. Across the country, defendants who have not been convicted of a crime are put on “offender funded” payment plans for monitors that sometimes cost more than their bail. And unlike bail, they don’t get the payment back, even if they’re found innocent. Although a federal survey shows that nearly 40% of Americans would have trouble finding $400 to cover an emergency, companies and courts routinely threaten to lock up defendants if they fall behind on payment. In Greenville, South Carolina, pretrial defendants can be sent back to jail when they fall three weeks behind on fees. (An officer for the Greenville County Detention Center defended this practice on the grounds that participants agree to the costs in advance.) In Mohave County, Arizona, pretrial defendants charged with sex offenses have faced rearrest if they fail to pay for their monitors, even if they prove that they can’t afford them. “We risk replacing an unjust cash-bail system,” Steinberg said, “with one just as unfair, inhumane and unnecessary.”

Many local judges, including in St. Louis, do not conduct hearings on a defendant’s ability to pay for private supervision before assigning them to it; those who do often overestimate poor people’s financial means. Without judicial oversight, defendants are vulnerable to private-supervision companies that set their own rates and charge interest when someone can’t pay up front. Some companies even give their employees bonuses for hitting collection targets.

It’s not only debt that can send defendants back to jail. People who may not otherwise be candidates for incarceration can be punished for breaking the lifestyle rules that come with the devices. A survey in California found that juveniles awaiting trial or on probation face especially difficult rules; in one county, juveniles on monitors were asked to follow more than 50 restrictions, including not participating “in any social activity.” For this reason, many advocates describe electronic monitoring as a “net-widener": Far from serving as an alternative to incarceration, it ends up sweeping more people into the system.

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