The Rise of Electronic Monitoring and its Costs to Criminal Defendants
During the covid-19 pandemic, there was an increase in the use of electronic monitoring. Yet such monitoring has been available for some time. The use of ankle bracelets increased 140% between 2005 and 2015. While avoiding unnecessary incarceration may seem like a good idea, there are financial and civil rights issues to be considered.
New York’s Use of Electronic Monitoring
In 2020, New York enacted bail reform measures to keep many defendants from being held in jail pending trial as much as possible. And part of those reforms include the use of electronic monitoring as an alternative to cash bail.
With offenses where bail can be set, defendants can instead be released with an ankle monitor. In this case, the defendant will be released but will have to wear a monitoring bracelet. Then, the judge can then put conditions on where the defendant can go and during what hours.
For example, a judge may indicate the defendant must be at home unless he/she is at work. And the judge will specify the hours in which he/she can work. Additionally, the judge can allow for a defendant to provide transportation or care for his/her children.
In New York City, the cost for such monitoring is borne by the city. Outside of the city, however, a defendant may have to pay for the monitoring themselves. To qualify for the electronic monitoring, a defendant must have a cell phone, a stable residence, and access to an electrical outlet.
Use During the Pandemic
Use of electronic monitoring was key to keeping jail populations down during the height of the covid-19 pandemic. Jails used the technology to reduce the number of defendants held in tight quarters that were a breeding ground for the virus.
Any contagious ailment is likely to spread in the close quarters available in jails. With covid-19, the virus could become a death sentence. As such, jails in New York and across the country released many low-level and non-violent offenders to home confinement. Ankle monitors were key to this plan.
One estimate indicates there were 25% to 30% more people worldwide wearing electronic monitors as a result of the pandemic. Indeed, from March to July 2020, the Federal Bureau of Prisons put approximately 4,600 people on electronic home confinement, an increase of 160%.
Issues With Electronic Monitoring
There are several concerns that come with electronic monitoring. One is the cost. Where the fees range from $3 to $35 per day, this can get expensive for defendants. While this may be a cost saving to a municipality for not having to pay to incarcerate, it merely shifts the burden.
Ankle monitors can also cause some physical discomfort or pain. This is particularly true for women, as most bracelets are designed for men. And there is a social stigma associated with anyone wearing such a device.
The rules that go along with the monitors can be onerous. Moreover, rules imposed by the judge and/or the monitoring agency can be vague. One example is avoiding people of “disreputable character.” As such, this can lead to violations where the wearer didn’t intend to break any rules.
The electronic monitoring devices are also not perfect. There are many digital glitches, including signal loss and inaccurate alerts. Additionally, many devices have a short battery life and the wearer must constantly be aware of such or face a violation.
Finally, there are civil rights concerns. Such monitors may have the technology to record calls and conversations. As such, wearers become walking wiretaps. And this can include private conversations, including those with medical providers and attorneys.
References:
- Criminal Court of the City of New York, “Operational Directive: Electronic Monitoring (COVID-19 Procedure)” (Apr. 20, 2021). Available at: https://cdn.ymaws.com/www.nysda.org/resource/resmgr/covid-19_pdfs/nyc_courts_electronic_monito.pdf (last accessed Oct. 1, 2021).
- Lauren Kilgour, “Covid-19 has led to a worrisome uptick in the use of electronic ankle monitors,” Technology Review (Oct. 8, 2020). Available at: https://www.technologyreview.com/2020/10/08/1009822/covid-19-surveillance-electronic-ankle-monitors-opinion/ (last accessed Oct. 1, 2021).
- Varun Bhadha et al., “Electronic Prisons: The Operation of Ankle Monitoring in the Criminal Legal System,” GW Law (2021). Available at: https://issuu.com/gwlawpubs/docs/electronic-prisons-report?fr=sOGI5NDcxODg3 (last accessed Oct. 1, 2021).