by Derek Gilna, Christopher Zoukis

The use of wearable electronic tracking devices for defendants and people on community supervision has risen sharply over the past decade. Cash-strapped municipalities like the reduced cost, which is much lower than a prison or jail bed and is often passed on to the device wearer. Those on electronic monitoring and their families prefer the freedom it grants them to remain together. And defense attorneys say non-incarcerated clients receive better criminal justice outcomes.

But there are difficulties with electronic monitoring. If the technology fails, a person can end up unfairly jailed. The devices are also startlingly easy to foil or remove, and when they are lost or damaged, or when a wearer fails to pay the monitoring fees, the costs for municipalities begin to eat away at the savings anticipated from electronic tracking systems. In addition, the practice of passing on monitoring fees to the wearers can leave them in a sort of debtor’s prison; in some cases, it’s more economical to stay in jail than run up a large monitoring bill.

According to a September 2016 report by Pew Charitable Trusts, more than 125,000 people were on electronic monitoring in 2015. That’s a small fraction of the 4.65 million on parole or probation in the United States, but is also 140 percent higher than just a decade earlier.

“That’s fairly rapid growth of a new technology throughout the system without a solid research base that shows when and how the technology would be most effective,” noted Adam Gelb, director of Pew’s Public Safety Performance Project, which produced the report. “There are some indications that electronic monitoring can reduce recidivism, but at this point it’s not clear for which offenders or at what stage of the process.”

Driving the trend of increased electronic monitoring is the fact that the technology is enticing in its effectiveness: the person to be tracked is fitted with a waterproof, impact-resistant device about the size of a smart phone, usually worn around the ankle. It uses either radio frequency (RF) or GPS via satellite through cell phone towers to monitor an offender’s movement – in the case of GPS devices, it is accurate within seven feet. If the device is removed or tampered with, or if the person being monitored strays from the area in which he or she is supposed to be confined, an alert is sent to law enforcement officials.

The projected cost savings over jails are attractive, too. In La Crosse County, Wisconsin, for example, GPS monitors cost $800 each to purchase and $6 each per month to monitor – versus a jail bed which can cost tens of thousands of dollars to build and up to $83 a day to maintain. In most municipalities that use them, the cost of the monitoring device is passed on to the wearer, through weekly or monthly fees.

The benefits to people on electronic monitoring who can remain employed and with their families, instead of in jail, are obvious. Less obvious, but equally important, is the potential for a better outcome in court. Research by the Arnold Foundation published in 2013 found that defendants who are incarcerated before trial plead guilty more often and receive harsher sentences. San Francisco attorney Kevin Mitchell said he has a better chance of winning a case if his client can walk freely into court in a coat and tie rather than under guard or in an orange jumpsuit.

“I always prefer having a client come through the front door,” Mitchell stated. “Judges and the prosecutors treat them better that way.”

But what happens when tracking devices malfunction? Some people who have been fitted with GPS devices claim they are not reliable. In Indianapolis, Indiana, Community Corrections client Nakiea Theus said her device is difficult to charge and often doesn’t hold a charge. It malfunctioned while she was getting dialysis, resulting in her being jailed for five weeks in the summer of 2016. The problem was ultimately traced to a defective cord.

Videos available on YouTube show how to remove the monitoring devices using readily available household supplies. And while cheaper than prison or jail, monitoring wearers’ movements still incurs costs for new and replacement devices, plus monitoring manpower – which is often outsourced to private firms.

In La Crosse County, the cost of lost monitoring units was $35,000 in 2015 alone; further, officials collected only 44 percent of monitoring fees in 2014 and 2015 combined, often due to the indigency of offenders, which cost the county another $171,000.

The ability of someone on electronic monitoring to pay the fees can have dramatic effects. In January 2017, Mitchell convinced a judge to let his client, William Edwards, out of jail with a bulky GPS monitor attached to his ankle. Then Edwards received a bill.

“I didn’t know it was going to cost that much money,” he said. “The cost was about $900 a month or roughly $26 a day.”

While on electronic monitoring, Edwards was able to get his job back, but he doesn’t make much money. The case dragged on so long that he began looking for a way out of the mounting bills, even if that meant pleading guilty.

“I had to convince him, ‘Don’t take any deal, you’re not guilty, don’t take a deal just to get out of this financial bind. You’ll pay that money back, alright? But you can’t get back your guilty plea,’” Mitchell stated.

After three months, prosecutors dropped the case due to lack of evidence. But Edwards said he’s still paying back family members who loaned him the money he had to pay Leaders in Community Alternatives (LCA) — the company that provides electronic monitoring for Alameda County.

LCA and similar firms stand to benefit from California’s proposed SB10, which would mandate the use of bail alternatives, including electronic monitoring. The bill was referred to an appropriations committee in September 2017.

Leslie Summers, the director of community and government relations for LCA, said the company was founded in the 1980s when Jack Love, a judge in New Mexico, was reading a Spider-Man comic.

“The villain put some type of a tracking device on Spider-Man,” Summers stated. “He wanted to know where he was at all times.”

The judge was struck by that concept and thought, “‘Hmm, why can’t we do that with offenders?’”

In the case of convicted sex offenders, GPS tracking devices are used to monitor those on lifetime supervision. A 2013 study in California, sponsored by the U.S. Justice Department’s National Institute of Justice, found high-risk offenders released on parole and fitted with GPS devices had a recidivism rate 38 percent lower than those without the devices.

“With appropriate protections and oversight, this kind of monitoring can sometimes be a useful alternative to incarceration,” Nathan Freed Wessler, a staff attorney with the ACLU, wrote in an email.

But two convicted sex offenders in Southern California raped and killed four women after being released on parole in 2014, despite both wearing GPS monitors. And there have been other cases where people being monitored have committed crimes both while wearing tracking devices or after removing them.

The U.S. Supreme Court weighed in on the issue of electronic monitoring in Grady v. North Carolina, 135 S.Ct. 1368 (2015) [PLN, June 2015, p.51], and found that the attachment of a GPS tracking unit to a sex offender qualified as a “search” for Fourth Amendment purposes. However, the Court left open the question of when such a search would be reasonable.

One convicted pedophile, Michael J. Belleau, a 72-year-old Wisconsin resident, challenged his state’s policy of requiring sex offenders to wear tracking devices on Fourth Amendment grounds, and a district court judge ruled in his favor. However, the Seventh Circuit Court of Appeals called the lower court’s ruling “absurd,” saying the requirement to wear the device does not violate the Fourth Amendment’s prohibition against unreasonable searches and seizures.

The appellate court wrote that Belleau’s right to privacy was more directly impacted by the fact that his conviction was published on an online sex offender registry, finding that any burden on his privacy “must in any event be balanced against the gain to society.” See: Belleau v. Wall, 811 F.3d 929 (7th Cir. 2016).

“It is important to understand how onerous, restrictive, and privacy-invasive it can be to have a GPS monitor attached to your body 24 hours a day,” said Wessler, with the ACLU. “GPS tracking of people should only be used when truly necessary in a particular case, and only when its effectiveness has been convincingly demonstrated to a court.”

Additionally, critics have noted that electronic monitoring often expands the number of people involved in the criminal justice, and thus does little to curb mass incarceration – since people who violate the terms of their supervised release while being monitored are funneled back into prisons and jails. [See: PLN, April 2015, p.22].

Further, the Electronic Frontier Foundation (EFF), a leading advocate of electronic privacy, notes on its website that “All too often, new police surveillance tools are initially applied only to the ‘worst of the worst’ and then slowly – but surely – expanded to include an ever-growing number of less culpable individuals. We’ve seen it with DNA collection. And now we’re starting to see it with GPS tracking.” 

Sources: Pew Trusts, U.S. News & World Report, www.kqed.org, www.govtech.com, www.fox59.com, www.arstechnica.com, Detroit Times-Free Press, www.bjs.gov, www.eff.org

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