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Electronic Monitoring: An Alternative to Incarceration or a Troubling Extension of Punishment?

by David M. Reutter

It is often said that life imitates art. When it comes to electronic monitoring (“EM”), your friendly, neighborhood Spiderman was a major influence for the idea to use an electronic device to track the location of persons entangled within the criminal justice and immigration systems. The use of EM has gained traction as reformers push to end mass incarceration and the cash bail bond system. Critics, however, assert that EM is just another form of government control that has an insidious impact upon those subject to EM, their families, and society as a whole. They also warn leaving EM unchecked allows Big Brother another avenue to monitor society’s every move. While others support EM by citing its positive benefits, EM’s founders regret that it has been transformed from a tool to motivate behavioral change to a form of punishment itself. 

EM is a prime example of how technology can be created for one purpose and is found to have applications in a realm its creators never intended. While studying in the 1960s at Harvard University under famed psychologists B.F. Skinner and Timothy Leary, twin brothers Robert and Kirk Schwitzgebel, who later changed their last name to Gable, came up with the idea to use EM as a form of positive reinforcement. Their research began by monitoring the movements of juvenile offenders, so they could reward them for being timely for appointments.

The idea came after Robert watched the 1961 movie Westside Story. “I would take dates to the movie because it had a romantic effect on them. (I wasn’t very creative about what to do with dates back then.) By the third time I saw the movie, I had a good understanding of the plot,” Robert said. “During the movie, the hero’s girlfriend tries to get to him in time to warn him of the danger of a gang fight, but she is too late. I wondered how we could have helped him. I thought, if only we could have sent him a signal. If only we knew where he was, we could have saved his life. Then I had an idea. If he wore a transmitter, we would contact him and prevent his death.”

The following week, Robert met William Sprech Hurd, an electrical engineer, at a cocktail party. They created a cumbersome battery-operated device from war surplus missile-tracking equipment. Their device used radio frequency to communicate the test subject’s location. An office was established in a vacant Cambridge storefront. It drew volunteer at-risk youth, parolees, psychiatric patients, and student researchers to participate in various behaviorally oriented research projects between 1960 and 1975. Much like how Skinner rewarded animals for responding to sound cues, the Gable brothers sought to inspire responsible behavior in juvenile offenders by rewarding them with free haircuts, pizza, concert and movie tickets, limo rides, and other prizes.

“The purpose, though, was to give rewards to the offenders when they were where they were supposed to be, that is they were in drug treatment session, or went to school or a job,” explained Robert Gabel. “And then we would signal them that they were eligible for a reward.”

Their device usually covered about five square blocks. “A patent was granted on the system in 1969 (Schwitzgebel and Hurd, 1969),” reported the Civic Research Institute (“CRI”). “One study (Schwitzgebel, 1969) summarized the results from sixteen participants who ranged from an offender with over 100 arrests and eight years of imprisonment to a young business person with no arrests. The results indicated that the participants either adjusted to the monitoring system within the first few days or rejected it as too intrusive and embarrassing.”

The rewards, however, were not significant enough for all of the 16 volunteers to endure the invasiveness of the initial study. All but two dropped out of the study, finding the bulky radio transmitters oppressive. “They felt like it was a prosthetic conscience, and who would want Mother all the time along with you,” Robert Gable said. Psychology Today declared the device a “belt from Big Brother.”

Robert Gabel moved to UCLA and later to Claremont Graduate University in California and initiated smaller studies with young adult offenders. He partnered with Robert Bird, a graduate engineering student, to build a transceiver on a belt that was capable of two-way tactile signaling. It employed an FCC-licensed low-powered radio station that covered less than a mile. Later, their research included “telemetering physiological responses such as heart rate and galvanic skin responses of offenders in natural social settings (Schwitzgebel and Bird, 1970),” reported CRI.

“Our idea was, gosh, if you can train pigeons to play Ping-Pong,” Robert Gamble said, “you ought to be able to get kids to show up for therapy on time.” 

“We wanted to apply operant conditioning to human social problems,” Kirk Gabel added.

The idea of monitoring offenders remained idle for about a decade until Jack Love, a judge in Bernalillo County, New Mexico, resurrected it. Judge Love was seeking a technological solution in 1977 to an over-crowded prison system and prisoners attempting to escape. An idea started to form from reading in a newspaper about a device placed under the skin of cattle to track them and his recollection of a library equipped with a scanning device that would ring a bell if a visitor tried to leave with a book that had not been checked out. The idea for EM fully germinated after reading The Amazing Spiderman, a comic-book series by Stan Lee and John Romia that ran in newspapers throughout the 1970s. In one story line that ran in August and September 1977, the evil Kingpin attached a tracking device to Spiderman. It allowed the villain to track, via radar, Spiderman’s location.

By 1982, Judge Love unsuccessfully floated his idea to computer companies. Then, he pitched his idea to Michael Goss, a Colorado engineer who was working as a sales representative for Honeywell Information Systems, to produce a tracking device for low-level defendants. Goss created the cigarette pack sized device he dubbed the Goss-link. It communicated with a receiver connected to a telephone in the age before cellphones. Every 60 seconds, it sent a signal to the receiver, which dialed a central computer if the device was outside the receiver’s 150-foot range. Judge Love was the first subject to test the Goss-link. “It put me on a very, very short leash,” he said in a UPI interview about the ankle monitor he wore over a weekend in March 1983.

After the New Mexico Supreme Court reluctantly gave permission for a pilot EM program, Judge Love ordered the first man to be fitted with a Goss-link in April 1983. He ordered two more men to wear the EM in short order. All three men were on work release with a “home curfew” from 7 p.m. to 7 a.m. each day, reported a 2008 paper published in the Journal of Offender Rehabilitation.Love said the device was “ideal for people convicted of drunk driving, who are required to stay out of cars or bars at night.”

The first defendant completed his 30-day monitoring sentence but was arrested two months later for shoplifting. A second defendant “was a veteran of the Vietnam War and had violated his probation by receiving stolen property. That man kept to his curfew while wearing the ankle bracelet but apparently showed up drunk on his fifth day, a violation of his probation,” reported Gizmodo.com. “He was sent back to jail.”

“During the actual hours of monitoring, the procedure was found to be effective, although behavioral problems occurred at other times when monitoring was not in use. One unexpected, but not necessarily undesirable, consequence was the stigma associated with wearing the device,” reported CRI about the three-month pilot program. “Criminal associates of the first offender, a heroin user, did not want to be around him because they feared that the device was capable of transmitting conversations.”

The pilot program ended after peer judges in Bernalillo County argued that Judge Love violated the state’s Public Purchasing Act by signing a contract with Goss’s company, National Incarceration Monitor and Control Services, Inc. (“NIMCOS”), for tracking units without consulting the other judges. The state Supreme Court agreed.

“In my opinion, it was a successful field test,” Love was quoted as saying years later. “There were bugs and gremlins and glitches in the system and the equipment. However, it was like the Wright brothers getting off the ground.”

“That didn’t stop the judge’s idea from spreading throughout the country,” reported Gizmodo.com. “At least a dozen companies sprung up between 1983 and 1988 in the U.S. offering different versions of electronic monitoring for prisoners. About 20 states and counties in 14 states experimented with the technology in the 1980s, slowly pushing the concept into the mainstream, according to a report for Congress in 1988.”

An Electronic Goldmine 

Boulder Industries (“BI”), which was subsequently purchased by private prison profiteer The GEO Group, was the leader in tagging cows with its “Electronic Dairy ID System.” It was looking to grow its business when Goss came knocking for investors. BI’s then-president, David Hunter, asked an assistant to conduct a market appraisal of Goss-link. The assistant’s report was gloomy: “Probation and parole departments thought that electronic monitoring was too new, too much work, threatened their jobs, and shouldn’t be done by a private company,” CRI reported. “When Hunter read this report, he thought to himself, ‘Wow! Here’s a real business opportunity.’ About three months later he loaned $250,000 to NIMCOS.” BI then began an aggressive acquisition of smaller monitoring companies and personnel, including Goss.

EM gained traction as a growth industry when young inventor Thomas Moody, whose father owned the perfect combination of companies—a burglar alarm company and a radio station—to expand EM, convinced Monroe County, Florida, Circuit Court Judge Allison DeFoor to test an “In-House Arrest Program.” DeFoor became enamored with the technology.  

DeFoor, in April 1984, “transferred the small pilot program to Edward A. Garrison, Administrative Judge of the Palm Beach County Court. Judge Garrison placed 12 probationers on electronic monitoring under the supervision of the County Sheriff’s Department and of Pride Integrated Services, Inc., a non-profit probation service agency,” CRI reported. “Moody’s newly established Controlled Activities Corporation (“CONTRAC”) provided monitoring equipment for the In-House Arrest program, and the central monitoring station was placed at Pride in West Palm Beach.”

According to a report by the Florida Bar’s Judicial Qualifications, “Judge DeFoor improperly utilized his office in order to develop and promote an electronic device in which DeFoor held a financial interest. The device, used to monitor probationers under house arrest, had been developed by a corporation organized by Judge DeFoor. Moreover, Judge DeFoor signed as guarantor for a line of credit for the corporation, experimented with the device using individuals whom Judge DeFoor had convicted of minor criminal infractions, allowed his photograph to be utilized in promotional materials, replaced the Salvation Army as misdemeanor supervisor of the Upper Keys area and substituted a company which had marketed the device in another part of Florida, and at all times intended to participate in any profits which the device might generate.” The Florida Bar publicly reprimanded Judge DeFoor for his behavior and two other counts of unethical conduct. Inquiry Concerning a Judge, DeFoor,94 So.2d 1121 (Fla. 1986). 

The EM industry has experienced exponential growth since Moody’s breakthrough with an ethically-challenged judge. A serious study of its history and growth was chronicled by the Journal of Offender Monitoring, which was founded in October 1987 by Marc Renzema, now retired Professor of Criminal Justice at Kutztown University in Pennsylvania. That publication maintained until 2009 the most complete bibliography of monitoring-related publications that existed.

The technology behind EM continues to evolve. It has transformed from radio frequency to smartphones with GPS, image, and biometric recognition that are replacing ankle bracelets. As GPS and cell tower signals that provide precise locations proliferate, curfews are disappearing. Newer devices have a tamper-proof tether paired to a smartphone that can be attached to the wrist. Smartphones and wrist devices that detect blood-alcohol levels through one’s sweat are replacing breathalyzer kiosks.

EM is expanding into prisons. Missouri and Florida are two states that are installing the hardware to shackle EM on prisoners to determine their exact location inside the prison. In Missouri, EM wristbands also monitor a prisoner’s heartbeat and create three dimensional images showing with whom they have come into contact. Florida has a pilot EM program that is being installed at several higher security prisons.

EM is a growing industry with annual revenue of over a billion dollars. As of January 2022, the U.S. Immigration and Customs Enforcement agency had 182,607 individuals under EM supervision, with more than 60,000 people entering the program the previous year. The Biden Administration expanded the program to include new levels of supervision, such as strict curfews. According to a report by the Pew Charitable Trusts, 125,000 criminal defendants were under EM supervision in 2015. That was an increase from 53,000 people in 2005. A September 2022 report by the American Civil Liberties Union (“ACLU”) found that “[f]rom 2005 to 2015, the number of active electronic monitors in use rose by 140 percent. More recently, in 2020 and 2021, the number of people on monitoring increased in the wake of the COVID-19 pandemic as authorities tried to mitigate the impact of the virus on incarcerated populations.” Bloomberg estimated that 25-30% more people worldwide were shackled with EM as a result of the pandemic.

Rather than reduce jail and prison populations, EM widens the net of persons subjected to supervision by the criminal justice system. “EM further expands the carceral system because it is not just used as an alternative to incarceration, it is also imposed in cases where individuals would otherwise have been released on less or no restrictions. Consequently, EM use presents a self-fulfilling prophecy: EM’s mere existence leads to its widespread use because law enforcement becomes dependent on the tool. People under correctional control are not a monolith. Some individuals understandably prefer EM to incarceration,” the ACLU said. “But governments should not ask people to choose between a physical and electronic cage or between a deprivation of their right to liberty and their right to privacy. Rather, governments should make all efforts to keep people in their communities with as few restrictions on their liberty as possible,” the ACLU contends.

In 2022, the Biden Administration budget aimed to increase the number of people enrolled in ICE’s Alternatives to Detention (“ATD”) program by 45,000 people. It was touted as a more humane alternative to detention. ATD’s Intensive Supervision Appearance Program, however, has not resulted in a decrease in ICE’s incarceration rate.

“Since the creation of the Immigration Supervision Appearance Program, which was supposedly designed to reduce the number of people detained, the number of people who have been detained by ICE has more than doubled,” Tosca Giustini, a clinical student at Cardozo School of Law, said.

On May 28, 2021, 89,115 people were monitored through ATD. People enrolled in ATD’s ISAP (Intensive Supervision Appearance Program) are subject to residential visits, telephone calls, and curfews. About a third of all ISAP enrollees are forced to use EM devices.

When Illinois abandoned cash bail in 2023, many feared judges would turn to EM as an alternative. That is what happened when Cook County eliminated cash bail. One thing is certain, the more courts turn to EM, the more lucrative it becomes for private companies seeking to mine gold from poor defendants and migrant detainees ensnared in the criminal justice and immigration system. It is estimated by one prison research organization that by 2025, there will be 282,000 people under EM supervision in North America on any given day.

The Benefits of EM

EM ankle monitors are often called “digital shackles.” That phrase evokes the negative aspects of EM, which are examined below. Yet, there is evidence EM has many positive benefits. 

Research indicates that EM can produce positive effects for certain offenders (such as sex offenders), at certain points in the criminal justice process (post-trial instead of prison), and perhaps in combination with other conditions attached (such as geographic restrictions) and therapeutic components, according to a 2020 study in the Journal of Criminal Justice titled, “A Systematic Review of the Effectiveness of the Electronic Monitoring of Offenders.” 

A 2012 study produced by the District of Columbia Crime Policy Institute titled “The Costs and Benefits of Electronic Monitoring for Washington D.C”detailed a cost-benefit analysis. It found that, on average, EM reduced arrests of program participants by 24%, which generated “$3,800 in societal benefits per participant.” It further concluded EM saved local agencies $580 and federal agencies $920 per participant.

According to an article on BI’s website, EM results in participants being released from jail or prison early, allowing them to commute to work or school, attend therapy and appointments related to EM supervision, and complete community service requirements of their probation. “Individuals can remain in their community, preserve employment, maintain residence, maintain the support of family members, and access the resources they need to improve their lives,” the article stated. A little over 25% of sentences are between five years to a decade, according to the Federal Bureau of Prisons. When a prisoner is released before their sentence is completed, they may be allowed to serve the remainder of their sentence under EM. 

BI said it conducted “four rigorous studies” and and came to the following conclusions about EM:

Reduces an individual’s risk of failure by 31% 

86% of individuals placed on location monitoring at the time of sentencing remained free of any new arrest, during their term of supervision 

97% of individuals placed on location monitoring at the time of sentencing remain free of any arrest for a violent offense, during their term of supervision 

Individuals on EM supervision were far less likely to have a Failure to Appear violation (8.17% versus 22.59%) than those who were not electronically monitored. 

BI also cited a University of New Mexico study of the statewide pretrial GPS tracking system that found that between 2017 and 2020, 95% of people facing felony charges who were released before their trials did not go on to get arrested for a violent crime. 

With ever evolving technology, it is true that some of the horror stories that revolve around antiquated technology involved bulky radio frequency ankle monitors. “EM is becoming more personal and portable,” BI said. “Agencies now have access to low-profile, wrist-worn devices and smartphone apps to connect clients more closely with supervising officers and the critical community resources individuals need to be successful.” 

The ‘Systematic Harms’ of EM 

EM is actively advocated by many criminal justice and immigration system reformers as an alternative to custody for non-violent pretrial offenders, immigration detainees, probationers, and parolees. Criticism, however, abounds from civil rights activists. 

A September 22, 2022, report by the ACLU, titled “Rethinking Electronic Monitoring: A Harm Reduction Guide,” took an in-depth look into GPS ankle monitors, cellphones, and radio frequency technology as well as other devices that law enforcement agencies and private companies use to track the location of certain individuals and track them while they are out of a physical detention facility.

The ACLU pointed to evidence that EM fails to fulfill its goals of providing “a more humane alternative to incarceration” because people who are monitored can return to their communities instead of being in a detention facility, thereby improving public safety, reducing the risk of flight, and stimulating rehabilitation. 

EM is often justified by law enforcement as an effective way to protect public safety, ensure that individuals show up to their legal proceedings, and promote rehabilitation. However, the expanded use of EM disregards research and experience and illustrates that such monitoring devices fail at their intended purposes; cause massive harm to those being monitored; exacerbate inequities along lines of race, class, and disability; disrupt rehabilitation, all while resulting in an exorbitant price tag. Instead of serving as the substitute to incarceration, quite often, EM expands mass incarceration, as countless individuals are thrown back behind bars after committing minor technical violations.

In support of the technical violation claim, the ACLU cited two reports. An evaluation of EM in the Federal Probation Journal found no effect on rates of re-arrest for new offenses. However, the report did claim that individuals being electronically monitored were significantly more likely to have a technical violation. In addition, the Vera Institute’s 2020 study of pretrial EM concluded that the more time an individual is being electronically monitored, the higher the likelihood of them returning to incarceration as a result of violation of their EM. “Research on reentry programs have also found that more restrictive supervision does not necessarily lead to lower recidivism rates.”

Rather than providing the supervisee with a chance to succeed, “EM sets people up to fail.” Jail is often the consequences for taking out the trash, chasing after a dog, suffering a device malfunction, failing to charge the device, or not leaving a doctor’s office at a specified time. A report by the National Institute of Corrections found that “notification of upcoming court appearances (including phone calls, recorded phone messages, mail notification, text messaging, and email) was highly effective at reducing the risk of failure to appear,” the ACLU report said. According to a 2018 behavioral study, less invasive and regular sorts of interventions, such a text message reminders and transportation assistance, provide significant benefits without the EM albatross dangling from one’s neck. 

Another cause of technical violations is the myriad and numerous restrictive rules placed upon those under EM supervision, and their complexity create “greater barriers” for people with disabilities. In the study analyzed by the ACLU, the number of rules those under EM were forced to follow ranged from 4 to 41. In addition, in the study, the average number of rules was 14. However, the study pointed out that rules governing people being monitored are myriad. Then general court supervision imposes additional rules. The fewest number of rules was six, and the greatest was 58, with the average being 21.

While general release rules provide for flexibility, EM rules seem restrictive, although policies from 14 states suggest that the rules may be modified. The ACLU provided some examples of rules that “are ambiguous, overly broad or open to interpretation.” 

“He or she shall abandon evil associates and ways….”—Alabama Bureau of Pardons and Parole. 

“You shall so conduct yourself as not to present a danger to yourself or others.”—Department of Public Safety and Correctional Services, Maryland 

Conduct yourself “in the manner of a responsible citizen.”—Massachusetts Parole Board 

“I must maintain acceptable behavior and conduct which shall justify the opportunity granted to me by the … Parole Board.”—New Mexico Corrections Department

The ACLU also provided examples of ambiguous or overly broad EM rules: 

Conduct yourself in “an orderly manner at all times.”—Cuyahoga County Probation Department, Ohio. 

“I will not behave in such a manner that is likely to result in damage to or malfunctioning of the equipment.”—Department of Corrections and Community Supervision, New York. 

“I will remain faithfully employed at a lawful occupation and support my legal dependents, if any, to the best of my ability.”—Mississippi Department of Corrections. 

In addition to these types of amorphous rules, a technical violation may ensue for a violation of restrictive movement rules. According to Electronic Prisons: The Operation of Ankle Monitoring in the Criminal Legal System,monitored individuals are almost always required to remain on their property and can only leave their property with proper approval. But the process in order to obtain such approval is often unclear, and it typically takes days to implement. In many cities, going to church, to the store, and taking children to school or visiting a doctor all require pre-approval.

Mining Gold From Poor Defendants 

A disturbing aspect of EM is the financial toll imposed upon poor defendants. The high costs of EM place many people in a position where they inevitably fail. EM can cost between $1.50 and $47 per day or between $547.50 and $17,155 a year. These fees threaten the financial security of a population that is already struggling to make ends meet. On average, EM fees are $3,284.08 per year.  

Daehaun White thought he was walking free on October 12, 2018. His $1,500 bond for driving around in a stolen vehicle a friend allegedly loaned him was beyond what he or his family could afford. His public defender, Erika Wurst, convinced the judge to lower the bond to $500, and the non-profit Bail Project paid it for him. As he was being released, a guard handed White a letter from Wurst.

The letter informed him that St. Louis Judge Nicole Colbert-Botchway ordered him to wear an ankle monitor. That release stipulation required White to immediately report to the offices of Eastern Missouri Alternative Sentencing Services (“EMASS”) to be fitted with the EM. To get the monitor attached, White had to pay $300, which included a $50 installation fee and 25 days of service at $10 per day. White could not afford to pay the fee, and police came and rearrested him three days later.

White’s mother subsequently borrowed the $300 to gain his release and for installation of the EM. Once he was fitted with an ankle monitor, White was instructed to appear at EMASS with $70 each week after the first 25 days. He was unable to obtain employment after his release. Some employers shied away after seeing the bulky monitor. 

Placing a defendant on EM falls within the discretion of the presiding judge. Interviews of two different St. Louis judges exhibit how that discretion is applied disproportionately. Judge Rex Burleson stressed that while each case is different, EM is usually imposed upon defendants who are deemed a flight risk, endanger public safety, or have an alleged victim. Judge Colbert-Botchway, according to public defenders, regularly made GPS a condition of release. Judge David Roither said, “I really don’t use it very often because people here are too poor to pay for it.” 

The EMASS contract allows the court to assign indigent defendants to EM “at no cost.” None of the judges interviewed by ProPublica could recall waiving EM fees. Judge Burlison was against such a waiver. 

“People get arrested because of life choices,” Burlison said. “Whether they’re good for the charge or not, they’re still arrested and have to deal with it, and part of dealing with it is the finances.” To release defendants without monitors simply because they can’t afford the fee, Burlison told ProPublica, would be to disregard the safety of their victims and the community. “We can’t just release everybody because they’re poor,” he continued.

Private companies such as EMASS typically have weekly check-in hours that conflict with the daytime work schedules of those under supervision, creating a hardship that can cost them their jobs. In 2011, the National Institute of Justice surveyed 5,000 people on EM and found that 22% said they had been fired or asked to leave a job because of the device.

Some critics argue that the public-safety claim is specious rhetoric that serves only to protect the judge. “The fundamental question is: What purpose is electronic monitoring serving,” said Blake Strode, the executive director of ArchCity Defenders, a nonprofit civil rights law firm in St. Louis. “If the only purpose it’s serving is to make judges feel better because they don’t want to be on the hook if something goes wrong, then that’s not a sensible approach. We should not simply be monitoring for monitoring’s sake.”

Three months after he was fitted with an electronic monitoring device, a judge approved White for its removal. When he showed up at EMASS’s office, he was told the contract he signed provided the device could not be removed until he paid the $700 he owed. White stopped charging the device. When he appeared at EMASS’s office one Monday, a compliance officer removed the device and calculated what White owed. The total amount owed was $755, plus 10% annual interest. EMASS expected White to pay $850 over the next nine months, which was more than his initial $500 bond. When Goss jumped into the EM business, he described it as a “goldmine.” In cases such as White’s, the poor who are subjected to EM comprise the mine that the gold is extracted from. 

Undermining Rehabilitation 

The restrictive movement rules that come with EM supervision are, as described earlier, rigid and difficult to have adjusted. Michael Tafolla was placed on EM as a condition of his supervised release after serving 20 years in an Illinois prison. He was initially approved for three days of four-hour movement. He soon obtained an internship at a university and a full-time job with a temp agency. When he called his parole officer to request an adjustment, he was told that he “had to pick between the internship or the job with the temp agency,” Tafolla said. “They said I was doing too much. I was having panic attacks because of this. I am trying to go to school. I am trying to work. I don’t understand the problem. You’re telling me I’m doing too much? I’m doing too much of what I’m supposed to do? You get out and you think you’re free and you’re going to be able to enjoy life, but now doing the most basic, necessary things like working and school become the most complicated,” Tafolla observed.

When Shannan Davis was released from a Michigan jail to a treatment center, she was subjected to EM. At first, the ankle monitor was too loose, and then when it was adjusted, it was too tight and caused her pain. Pursuant to her EM rules, she was prohibited from leaving the recovery house. “I can’t go on group outings with the other girls staying here. I’m pretty much locked down in this house,” she said. “I’m not allowed to go to the store with the rest of the house. I’m not allowed to take a walk down the road for exercise. There are always staff members with the girls so we’re not unsupervised but, because of the way my bond is worded, I am not allowed to participate.”

Davis was unable to pay the weekly $105 EM fee, so her mother paid the bill for her. In addition to the rigors of digital confinement, Davis said the device itself is troublesome. “Like the other day when I got back from the doctor, all three lights on the monitor were going off and it did that for two to three hours. I couldn’t get a hold of anybody. The thing just goes off all day,” she said. “It’s stressful because I think they’re going to come and pick me up and arrest me.”

Upon his release from jail while awaiting trial, Matthew Brown was placed on EM and confined to his Maricopa County, Arizona, home for three years. He said the movement restrictions caused him to lose touch with his family. “The more disconnected I get from people, the harder it is on me mentally; the worse I feel about myself. When you’re on electronic monitoring they say you are free, but you’re really jailed,” he said. Then, there were the costs. Several of his monitors were destroyed from water, subjecting him to the $1,740 cost of each unit. “I’ve probably water damaged a dozen or more because of my job as a boat captain. It wasn’t me having fun, it was me doing my work. There is a daily charge too, but I do not know how much it is.”

“They can force a guilty plea out of someone because you owe so much money,” continued Brown. “If I did not have the financial means and support, I would have already pleaded guilty. I can only imagine how many people do that. People lose their jobs because of electronic monitoring and they can’t pay for their house, or family, or kids. It’s a domino effect.”

The effects of EM are magnified when forced upon juveniles. When 13-year-old Christopher grabbed a girl’s butt in a middle school hallway, he thought he had done something foolish and inconsequential. The girl, 14, felt otherwise when she reported it to her mother, who called police. Christopher was charged with sexual battery. He spent more than a month in a juvenile hall and took a plea deal for 90 days of probation that included EM. His probationary term was regularly extended due to both serious offenses like stealing a bike and for technical violations such as being late for his 6:00 p.m. curfew. He ended up being supervised on EM until he turned 18.

Christopher said he had to wear loose fitting pants all the time to hide the ankle monitor and avoid teasing from peers. He was jailed several times for violations. “It disrupted my education, which I had to continue while I was locked up. I ended up graduating on time only because I stayed focused. But it just created this hatred in my heart for the police,” he said. “Curfew was definitely the hardest part. Getting home at 6 p.m. every night. 6 p.m. I was a teenager. I had energy! But I only had these two or three short hours after school to do anything, even activities like sports and extracurriculars. And then someone would say, ‘Chris, it’s 5:50!’ And I’d be so embarrassed and would have to sprint out of there and run home. At one point, I had a dishwashing job and would get off at night, and they’d hassle me even for that.”

In many jurisdictions, EM rules dictate family and social relationships. The following are a few examples of such rules: 

People on monitors are prohibited from “babysitting or being a primary caregiver for any person, children, or pets without approval.”—Alaska Department of Corrections.

People on monitors must “understand that all residents (18 years old and older) of the household [they] live [in] must agree to the conditions listed on the Cohabitant Acknowledgement Form.”—San Diego County Sheriffs’ Department, California.

“Participants and their family members will receive an orientation, from the Monitoring Service Unit Chief, the Case Manager [and/or] the Investigator … and they must sign the Program Agreement acknowledging their understanding of the rules of the program, prior to release.”—Prince George’s County Department of Corrections, Maryland.

“I will not allow persons of disreputable character to visit my residence during the period of home confinement.”—Kanawha County Sheriff’s Office, West Virginia.

In some jurisdictions, rules require family and friends to cooperate or share information with law enforcement:

“Since a client may be harder to reach in the community,” people who live with a person on a monitor are required to share their contact information with the monitoring officer.—Dallas County Pretrial Services.

People on electronic monitoring must provide their family members’ “[f]irst, middle, last and maiden name; address and phone number; if the family member has been on supervision or incarcerated; date of birth; highest education level; substance abuse history; [and] if the family has a criminal history.”—Virginia Department of Correction.

Physical and Other Harms of EM

When a woman identified by Motherboard as Ms. C. was released from ICE immigration detention, she was fitted with an ankle monitor that required charging every 4-5 hours. However, she told lawyers at the Kathryn O. Greenberg Immigration Justice Clinic that the device hurt her ankle. In fact, the device was so uncomfortable that it gave her “lacerations … numbness … [and] sores.” 

A bulkier replacement model electrically shocked Ms. C. four times when the battery ran low or was not fully charged. A report by Freedom for Immigrants, the Immigrant Defense Project, and the Benjamin N. Cardozo School of Law reported similar incidents. “Participants also reported aches, pains and cramps, excessive heat, numbness, inflammation, scarring, cuts, and bleeding from the shackles. Sixty-five percent of participants said that the devices negatively impacted their physical health on a ‘constant’ basis.”

A report by The Guardian detailed the EM experience of Macarena. “Before I was sent to detention, I was paying taxes, we were working. I didn’t want to lose my daughter, my husband, my baby boy … I lived in this country for almost 18 years,” she said. Faced with the choice of detention or EM, she chose the latter in 2020.

She said the bulky BI ankle monitor was heavy and made it difficult to walk. At times, the device would overheat and burn her skin. “I put a big Band-Aid or a sock between the belt and my skin because it was so hot,” she recalled. “My skin turned red and started bleeding because it was tight and hot at the same time.” BI issued a statement disputing claims its device is defective or otherwise harms individuals wearing it.

The stigmatism of EM is one of the harms most often cited by those subjected to such supervision. Some reported being pointed at, mothers grabbing their children and leaving the area, employers refusing to hire them, and prejudice in housing opportunities. While these and other harms of EM may be disputed or accepted as an alternative to incarceration, the privacy concerns inherent in EM is not fully understood and is highly regulated. As EM grows as an alternative, the creep of EM into one’s life should be of concern to all citizens 

Expanding the Panopticon

Former Google CEO Eric Schmidt warned that, “Almost nothing, short of a biological virus, can scale as quickly, efficiently or aggressively as these technology platforms and this makes the people who build, control and use them powerful too.”

The encroachment of EM upon one’s privacy rights calls to mind the panopticon, a circular or rotunda shaped prison with an inspection room in the center so that “a functionary standing or sitting on the central point, had it in his power to commence and conclude a survey of the whole establishment in the twinkling of an eye” that was designed by 18th century English social reformer and utilitarian philosopher Jeremy Bentham.

Paul-Michel Foucault, a French philosopher, historian of ideas, writer, political activist and literary critic, applied “the notion of the panopticon, with its twin focus on surveillance and self-regulation, as the preeminent form of social control in modern societies.” It has an interesting application to EM.

With the COVID-19 pandemic, “surveillance creep” moved into the private lives of citizenry throughout the world. According to Technology Review, governments around the world started aggressively mandating contact tracing apps. In China, for example, people were supposed to wear a digital wristband and download the StayHomeSafe app. The two work in unison to enforce quarantine requirements. In Bangladesh and India, travelers received hand stamps that marked them as meant to be in quarantine. And in America, some states issued quarantine orders as well as mask requirements.

In a 1979 paper, Foucult said the “panopticon allows disciplinary power to be enacted through hierarchical observation, examination, and normalizing judgement. In many settings, including in medicine and public health, the regime of power is all-pervasive: the few watch the many, undertaking surveillance using ‘methods of fixing, dividing, recording’ throughout society.”

“As a form of social control, this ubiquitous panoptic surveillance contributes to the feeling of being under continual surveillance, and so in response to this, individuals become their own agents of surveillance by complying with normative expectations and convention without having to be actually under surveillance,” was the summary of Foucault’s thesis in a report on link.springer.com titled COVID-19 Extending Surveillance and the Panopticon (the “Report”). “People willingly participate in this surveillance. In this manner panoptic surveillance is an apparatus of discipline which makes the exercise of power more efficient and effective—it is a subtle form of coercion, and thus the power is enacted invisibly and inapparently, permeating all aspects of social life. Self-surveillance and discipline in these ways have become the primary source of social control in modern society.”

“Foucault referred to the inconspicuous and invisible ‘guards at the gates, at the town hall and in ‘every quarter’ that ‘ensure the prompt obedience of the people,’” the Report continued. “We have learnt to live with “guards” in the form of the microregimes of power associated with everyday customs and ideologies and the deployment of reason, knowledge, sexuality, and many other social practices. Added to these we now have drones, wrist bands and ankle bracelets, smart phones, microchips, thermal sensors, and many other technologies to surveil our biometrics, our behaviours, and our movements,” stated the Report.

While COVID-19 and EM existed within a “state of exception,” it is the conditioning of society to accept the base of government that most concerns civil libertarians. Those subject to EM have little privacy and virtually no privacy rights under the U.S. Constitution. Their movements are highly monitored. The Report stated that by normalizing extended surveillance, certain risks are posed and questions raised. Such concerns should be the subject of ongoing, critical dialogue.

The National Juvenile Justice Network (“NJJN”) issued a similar warning. It noted that the Edward Snowden revelations on U.S. government surveillance “have enhanced public awareness of the scope of the surveillance state,” but still, much of the surveillance mechanisms and implementations linking data gathering to law enforcement and authority at large is obscure to society. Ultimately, those who protest the union between mass incarceration and the public-private surveillance must intimately understand how the technology works in order to create alternative solutions. What are the implications of the “expanding capacity of technology” that can regulate with surveillance? And what safeguards are there?

As researchers Danielle Keats Citron and Frank Pasquale said, “Big Data is increasingly mined to rank and rate individuals. Predictive algorithms assess whether we are good credit risks, desirable employees, reliable tenants, valuable customers—or deadbeats, shirkers, menaces, and ‘wastes of time.’ Crucial opportunities are on the line, including the ability to obtain loans, work, housing, and insurance.”

Research is being conducted to use EM information in troubling ways. For example, some police departments are using EM to pinpoint the exact location of a suspect after a crime has occurred. Law enforcement even hopes that someday, EM will be able to predict when someone is about to commit a crime.

For example, May Yuan, a professor at the University of Oklahoma, is developing software that logs an individual’s movements. By analyzing the results, her team can find patterns in the offender’s habits and thereby detect suspicious behavior. By observing the movements of a convicted burglar, for example, the software would notify law enforcement that he is circling a certain location every day. “Ultimately, we are hoping that our tools will help the parole officer to stop any potential crime committed by those offenders again,” Yuan said.

Another overlooked and unregulated aspect of EM is how the massive location-tracking data compiled by private companies is handled. Rather “than considering privacy issues, EM providers often boast of how much data they collect and how long it is stored,” according to NJJN. Satellite Tracking of People, for example, claims to be the largest EM company in the country and assures its clients that it keeps data for at least seven years.

“Without oversight, accountability, transparency, or rights, predictive policing is just high-tech racial profiling—indiscriminate data collection that drives discriminatory policing practices,” said activist poet Malkia Cyril. 

NJJN said a distinction must be made regarding whether EM is used instead of incarceration or a condition of parole “because it has an important effect on the question of its punitiveness.” While EM is often touted as an alternative to custody, one official said that is not how it works in practice. A former Michigan prison official said that EM is just another tool to extend incarceration.

According to an academic report by Sykes, “incarceration results in five pains: deprivation of autonomy, deprivation of goods and services, deprivation of liberty, deprivation of heterosexual relationships and deprivation of security.” A report titled “Punitiveness of electronic monitoring: Perception and experience of an alternative sanction” published on sagepub.com identified pains specific to EM. It found EM pains are the deprivation of autonomy and deprivation of liberty, pains affecting relationships, deprivation of employment-favorable conditions, and physical and financial pains.  

In conclusion, the author of the punitiveness reportsaid that if “EM is used instead of incarceration, then it represents an alternative, otherwise it turns into an additional punishment…. If EM is meant to provide an alternative to incarceration, then it also requires a framing that adapts to the life situations of the people wearing the bracelet and the people in the household; that is, it requires a certain degree of flexibility.”

The inventors in the original EM technology are dismayed at how it has transformed into a source of punishment. “What really changes behavior are motivational factors, such as fun and adventure and pride and accomplishment, recognition, affection. Unfortunately, electronic technology has gone to punishment instead of the use of positive reinforcement,” lamented Robert Gable. The current technology “is like watching a child grow up retarded because of being misunderstood.”

Gable asked probation officers gathered around him why EM can’t be used for reinforcement rather than punishment. “If it got out that offenders were getting rewarded,” said one smiling officer, “that would cause a huge stir.”   

 

Sources: npr.org, gizmodo.com, civicresearchinstitute.com, bi.com, wired.com, aclu.org, themarshallproject.org, vice.com, aclu.org, issuu.com, njjn.org, journals.sagepub.com, technologyreview.com, link.springer.com, kiro7.com, edmontonjournal.com, reviewjournal.com, propublica.com, the guardian.com, stltoday.com 

 

 

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