by Douglas Ankney

“I was young. I couldn’t pay for my ankle monitor. I went to jail because I couldn’t pay for my ankle monitor. And then they let me back out again on my ankle monitor that I couldn’t pay for.”—Dante Bristow, 23, who was arrested in Kansas at age 13 for stealing groceries after his family’s food stamps ran out.

In America, justice-impacted individuals and their families are often caught in a vicious cycle when they are released with conditions requiring payment of fines, along with fees for probation and electronic monitoring (EM), only to be reincarcerated for failure to pay those charges—and then re-released with the burden of additional fines and fees they cannot pay.

While fines and fees are imposed upon both civil and criminal defendants, there is a distinction. Fines imposed upon a criminal conviction are intended for deterrence and/or punishment, whereas civil fees are generally intended to raise revenue.

A particularly pernicious “pay to stay” legislation allows Florida courts to charge prisoners up to $50 per day for their incarceration—based on the length of the sentence, not how much of it is served. That’s how former prisoner Shelby Hoffman ended up owing $127,500 for a 10-year sentence despite getting an early release in 2015 after just 10 months behind bars.

“I was completely shocked that a judge could modify every term in my [sentencing] packet, in my court case, but you charge me for a cell I didn’t occupy?” Hoffman said. “I felt so tricked. And so fooled.”

Elected officials who campaign on “tough-on-crime” measures while simultaneously promising tax cuts fuel the criminal justice system’s growth and simultaneously starve it of resources. As a result, the list and amount of fees charged for such things as court processing, public defenders, prosecution, jail and probation/parole supervision continue to grow.

“Offender” or “user” fees supporting the punishment system have ballooned over the last four decades. Often these fees are used by cash-strapped communities to support functions unrelated to the justice system. After the fatal 2014 shooting of Michael Brown in Ferguson, Missouri, the U.S. Department of Justice (DOJ) investigated the city police department and found that officials pushed fee increases to boost revenue. Tony Messenger, a St. Louis Post-Dispatch columnist, won a Pulitzer Prize in 2019 for exposing “the injustice of forcing poor rural Missourians charged with misdemeanor crimes to pay unaffordable fines or be sent to jail”—including a woman who amassed nearly $16,000 in legal financial obligations from a stay in prison for stealing an $8 tube of mascara from a Walmart.

Perhaps most egregiously, these fees are often partially diverted to profit private firms contracted to provide the services. Private-prison operator GEO Group, Inc. markets an extensive array of services under its “alternatives to detention” program, including $337.8 million in 2023 revenues from its “Intensive Supervision Appearance Program”—an exclusive, five-year, $2.2 billion contract to provide federal Immigration and Customs Enforcement (ICE) with monitoring of immigrants using GPS trackers and a connected mobile app known as SmartLINK.

Fines and Fees Everywhere

Florida’s Department of Corrections (DOC) is only one of 43 state prison systems that charge prisoners for their own incarceration. Rutgers University sociologist Brittany Friedman broke down these fees into two broad groups in a 2020 study for the Journal of Contemporary Criminal Justice (JCCJ)—one consisting of fees for room and board, and another for specific service fees, like medical visit copays. Franz Kafka could not have imagined a more sinister world, one in which a prisoner is charged a per diem for a “room” that is actually a thin plastic mat inside a hard plastic “boat” docked in a hallway; or for “board” that consists of garbage food past its expiration date which has been repackaged to avoid health department scrutiny, in what is known as the “secondary food market,” as PLN reported. [See: PLN, Feb. 2023, p.26.]

Beyond the low level of medical care that courts have deemed constitutionally sufficient for prisoners, those in at least 35 states are charged copays for medical visits that average $2 to $8 per visit—a princely sum for prisoners paid pennies an hour for their labor while incarcerated, if at all. In Texas, state prisoners are paid exactly nothing for jobs they are forced to do while each medical visit costs them a $13.55 copay.

Adding other specific service fees for some programming, Friedman argued, plus even more fees for phone calls, strands prisoners and detainees in a legal limbo where they are guilty of “criminal conduct” while also causing “civil damages”—which survive their deaths to become obligations passed on to their heirs. That’s how tax refunds can be seized for unpaid “pay to stay” fees in Illinois; how retiree pensions can be garnished in Michigan; and how even disability benefits can be snatched by Missouri’s DOC. Unsurprisingly, Friedman found in 2019 that 10 million people owed a total of $50 billion in accrued incarceration debt. See: Unveiling the Necrocapitalist Dimensions of the Shadow Carceral State: On Pay-to-Stay to Recoup the Cost of Incarceration, JCCJ (Oct. 21, 2020).

Electronic monitoring and associated fees have also become both ingrained and ubiquitous within the U.S. criminal justice and civil immigration systems. But tracking data is not abundant on the number of people on electronic monitoring. “Unlike jail and prison data, there’s no federal effort to track even partial information on electronic monitoring,” said Jacob Kang-Brown, a senior research fellow at the nonprofit Vera Institute of Justice. Over a five-year period, VERA researchers contacted all 50 states and about 800 counties, collecting data from more than 500 of them, along with federal courts, the federal Bureau of Prisons (BOP) and ICE.

As VERA then reported in January 2024, data extrapolated from that research showed that from 2005 to 2021 the number of people on EM increased almost 500%, from around 53,000 in 2005 to more than 250,000 in 2021. Just one year later, in 2022, the number of people subject to EM rose to nearly half a million—a 1,000% increase over the number in 2005. Immigration accounted for roughly 67% (360,000) of that EM population, monitored for ICE under its Intensive Supervision Appearance Program (ISAP), with the remaining 140,000 in the criminal justice system. See: People on Electronic Monitoring, VERA (Jan. 2024).

Due to what is often described as an “explosion” in the number of immigrants entering the U.S. and corresponding pressure on the Presidential administration to track every immigrant not confined in a detention center, ICE became responsible for the overwhelming majority of the EM industry’s growth. Naureen Shah, deputy director of government affairs at the Equity Division of the American Civil Liberties Union (ACLU), observed that these EM “alternatives to detention” have simply made it easier than ever for ICE to conduct “24-hour suspicionless surveillance” of people who would likely have been released on their own recognizance. Shah said, “The problem always was that [electronic monitoring] wasn’t really functioning as an alternative to detention. It was just enlarging the subset of people that ICE was keeping tabs on.”

According to the VERA report, EM in its “most well-known form” consists of wearable monitors—often attached to ankles or wrists—which provide tracking via Global Positioning System (GPS), radio frequency (RF) or Secure Continuous Remote Alcohol Monitoring (SCRAM). Although a government agency could buy the equipment and administer an EM program, it usually contracts with a private vendor to supply the technology and also notify the agency of potential violations. On top of that, recent years have seen development of new supervision technologies that don’t require wearing any physical device at all; these include cellphone apps with location tracking, facial recognition and voice-verification.

Only Seven States Lack Laws to Impose EM Fees

In another report released on September 14, 2022, the nonprofit Fines and Fees Justice Center (FFJC) found that 43 states have statutes or rules authorizing EM fees, including 29 that impose the charges during both pretrial and post sentencing phases. Of the rest, 13 states authorize EM fees during the post-sentencing but not pretrial phase; New Jersey is the only state that authorizes EM fees at the pretrial stage but does not have a statute authorizing electronic monitoring fees at post-sentencing phase. Only 2 states prohibit EM fees, including California, where they are expressly prohibited, and Rhode Island, whose prohibition includes an exception for EM fees imposed as part of a criminal sentence.

The District of Columbia and six states—Hawaii, New Hampshire, New Mexico, New York, Oregon and Vermont—do not have statutory authority for EM fees, though this does not mean EM fees are not collected in those jurisdictions. For example, New York case law holds that an “implicit authorization exists, absent legislation to the contrary.” At least 26 states have statutes or rules that impose fees to cover the costs of an EM program but are vague as to specific amounts (e.g., authorizing “reasonable fees”). Only in Illinois, Kentucky, Missouri and Nevada do statutes mandate consideration of a person’s ability to pay before imposing EM fees both in the pretrial and post-sentencing phases; in 23 states, disturbingly, there is no statutorily required ability-to-pay assessment before imposing EM fees. See: Electronic Monitoring Fees: A 50-State Survey of the Costs Assessed to People on E-Supervision, FFJC (Sep. 2022).

Introduced as an “alternative to incarceration,” EM is often “not accompanied by a reduction in physical detention,” VERA reported. Rather, “EM often serves to expand surveillance and control over people who would otherwise be free.” In this way, EM has created a class of prisoners “confined and surveilled” without walls and fences, with “onerous restrictions” placed on their lives. They report “vague and overlapping rules” and a difficulty obtaining approval for ordinary tasks like going grocery shopping or to religious services—even dropping their children off at school.

In many cases, EM programs are completely participant-funded, charging high fees to those monitored that ends up saddling them with long term debt. Because of this, people on EM have described how the technology presents barriers to employment—most often with damaged credit reports—and thus negatively impacts their self-perception and personal relationships, even as their financial security diminishes.

“Finally, EM compromises people’s privacy and presents a threat of incarceration,” the VERA report noted. More Orwellian monitoring devices have two-way communication capabilities, permitting supervising parole and probation officials to eavesdrop on their clients’ private lives. EM programs can also require Fourth Amendment waivers for participants, who thus provide consent to frequent warrantless searches of their home and property. Violations of any EM conditions—from failure to timely pay fees to simply forgetting to charge the battery— can be punished with incarceration, “making EM a tripwire back into jail.”

A Texas Prisoner’s Release Plans Run Off the Road

Like most prisoners nearing release, Craig Caudill had a plan for his life. While incarcerated by the Texas Department of Criminal Justice (TDCJ), he put his time to good use by completing a commercial truck driver’s licensing program in Huntsville and was eventually entrusted to drive trucks for TDCJ after completing the program. He was excited about entering the field of commercial trucking with its a high job demand, plus it paid well. But four days prior to his parole, Caudill discovered he would be confined to his home for 18 months, with only a few exceptions, none of which permitted him the travel necessary to hold the trucking job.

His truck-driving plans scrapped, Caudill had to come up with a new plan. But that would be no easy task for someone required to wear a GPS ankle monitor that tracked his location and movements by the minute. Other stipulations placed on Caudill while he was subject to EM included: (1) submitting a proposed schedule of his whereabouts to his parole officer every two weeks; (2) getting permission to grocery shop, but not for more than one hour once per week; and (3) having his attendance at doctor’s appointments and job interviews conditioned upon requesting and receiving prior approval at least a week in advance.

 “If a job calls you and says, ‘We would like to see you tomorrow, come in and talk to us,’ you can’t,” Caudill said. “If they give me one hour to go to the grocery store, and I get stuck in traffic and can’t move, it doesn’t matter.” In fact, if he arrived home one minute past that hour, his parole officer was automatically notified. The overly restrictive requirements caused Caudill to feel as if he had less freedom than he did while imprisoned; at least TDCJ permitted him to drive its trucks across Texas. The EM caused him to live in a constant state of anxiety, fearing that an unforeseen situation would trigger an alarm that would land him back in prison.

Caudill’s fears were not unwarranted. EM devices often malfunction, and in many cases cause the person monitored to be reincarcerated. According to the ACLU, these malfunctions include “audio defects, faulty batteries, and/or an inability to connect to Wi-Fi.” One former prisoner in Michigan was returned to a cell after his ankle monitor failed to maintain a charge. Ankle monitors are also reported to cause long-term health impacts, including pain and discomfort, swelling, numbness, bruising, blistering, sores. Some even report electronic shocks.

Owing to device malfunctions, Caudill often received calls in the night from the EM company or TDCJ, inquiring where he was because the device had sent an alert indicating he had tampered with it or that he was not home. Kang-Brown aptly stated the obvious: “People coming home from prison and jails need support, not threatening restrictions. Policymakers should not let private companies profit from unproven new technologies at the cost of people’s freedom.”

When Ability to Pay a Fee Determines Success or Failure

FFJC also noted in its report: “Broad language in state statutes and rules often gives local governments considerable latitude in determining how much to charge.” Its review of 31 jurisdictions with EM programs found fees ranging up to $40 per day. Even within states, EM daily fees varied widely; Minnesota’s Ramsey County, for example, did not charge participants a fee related a fee, while 75 miles away in Steele County, the charge was $20 per day. A report from the Brennan Center for Justice put EM fees anywhere from $150 to $900 per month—with some as high $1,200 per month.

Some EM promoters claim that shifting the bill from the government to individuals is a feature, not a bug. One EM provider’s website bragged of saving West Virginia $25,000 per year per offender by such cost-shifting. In Virginia’s Fairfax County—among the country’s wealthiest—the Office of Sheriff Stacey A. Kincaid reported in 2019 that its work-release program using EM “saved the county over $600,000 in incarceration costs” while spending none of it on program participants; instead, they ponied up $60,000 for their own monitoring.

As FFJC pointed out: “The vast majority of people arrested and prosecuted are those least likely to be able to afford these fees.” Adults with incomes at or below the poverty line are three times more likely to be arrested than others. Even expanding the range to 150% of the federal poverty level means they are “15 times more likely to be charged with a felony.” People on probation are also typically low-income, with 60% earning less than $20,000 a year and 38% less than $10,000 a year. For these people, such fees “require choices between such necessities like food and rent for their families or paying the fees to avoid incarceration or other continued involvement with the criminal justice system.”

In LaPorte County, Indiana, an EM participant got drunk and turned himself into the jail because he could not afford his probation fees. Another Indiana woman from Lawrence County was ordered to pay $20 monthly on a bill of $8,363—a payment schedule that will require her to make payments for 35 years. In this way, EM fees don’t reduce but instead perpetuate the carceral state

The FFJC succinctly sums up this dynamic: “At the back end of the system, people may be placed in EM programs as a condition of a sentence that includes probation, parole, or some other form of community release,” FFJC noted. But associated fees “can lead to revocation of probation, parole, or release, either because the fees themselves are a condition of the sentence or because failure to pay leads to noncompliance with the court-ordered program.” However, when the ability to pay a fee determines success or failure on probation or parole, “we have a justice system that effectively reinforces economic and social inequity and conditions liberty, not on behavior, but on finances.”

“Ultimately,” the group reported, “those with limited financial means can be incarcerated while those with resources can pay to go free.”

The Illustrative Case of Thomas Barrett

Georgia resident Thomas Barrett became addicted to the drugs he dispensed as a pharmacist, costing him his job, his family and leaving him homeless. By April 2012, he had attained a subsidized $25-a-month apartment in Augusta. With food stamps his only regular source of income, he regularly sold his blood plasma to pay the rent. But after Barrett stole a $2 can of beer from a convenience store, he represented himself on the charge in court because indigent defendants in the county were assessed a $50 fee for the services of a public defender. That was $50 he did not have. Barrett was fined $200 and sentenced to 12 months probation with EM under the supervision of the private probation company Sentinel Offender Services.

Despite his probated sentence, Barrett spent two months in jail because he could not afford Sentinel’s $80 startup fee. He was released from jail after persuading his Alcoholics Anonymous sponsor to pay it. Subsequent EM fees cost Barrett $12 per day in addition to $39 per month that he paid to a private probation provider—a total nearly $400 per month. While that’s a hefty sum for most people, it was completely unmanageable for a man selling his blood plasma to pay his monthly $25 rent. Barrett explained, “Basically, what I did was, I’d donate as much blood plasma as I could and I took that money and I threw it on the leg monitor. Still, it wasn’t enough.”

To save money, Barrett skipped meals and did without essentials such as laundry detergent and toilet paper. But missing meals left him too weak to sell blood plasma. By February 2013, he had fallen $1,000 behind on his fees—five times the amount of his $200 court fine. Sentinel filed a technical violation against Barrett for failing to keep up with the fine and fees, and his judge sentenced him to a year in jail for the violation. “I should not have taken that beer,” Barrett later allowed to NPR News. “I was dead wrong. [But] to spend 12 months in jail for stealing one can of beer? It just didn’t seem right.”

Multiplying Fees, Expanding the Carceral State

It’s important to note that while EM fees are often exorbitant they are not the only such fees driving mass incarceration. As of September 2023, probation and parole departments in 48 states charge clients for their own supervision while 49 states allow or require EM costs to be passed on to participants. Parole supervision for those convicted of misdemeanors in over 1,000 courts were assigned to private, for-profit companies—a nationwide caseload that runs to hundreds of thousands. A 2014 Human Rights Watch (HRW) report found that “the day-to-day reality of privatized probation sees many courts delegate a great deal of responsibility, discretion and coercive power—sometimes inappropriately—to their probation companies.” See: Profiting from Probation—America’s “Offender-Funded” Probation Industry, HRW (Sep. 2014).

In 2014, in Barrett’s home state of Georgia alone, approximately 80% of misdemeanor convicts sentenced to probation were supervised by private probation companies. Those companies collected $40 million in fees from people convicted of petty offenses like illegal lane changes, drunk driving, running stop signs and trespassing. But private companies have profit motives to expand probation conditions, lengthen terms of probation and incarcerate their “clients” in order to extort money from them and their families. Instead of seeking the probationer’s rehabilitation and safe presence in the community, the goal for these private probation officers turns to prolonging probation and collecting fees.

Former DOJ Attorney Phil Telfeyan, who is now the executive director of the nonprofit Equal Justice Under Law, has filed numerous class-action lawsuits since 2015, accusing local officials and the companies with whom they work of extorting probationers and pretrial arrestees. Telfeyan reported that the vast majority of his clients faced misdemeanors and had their cases dismissed—only then to be left in dire financial straits due to EM fees. Some of his clients pled guilty simply to get from beneath the burden of the fees. Other clients testified they’ve been driven from their homes after being unable to pay both rent and EM fees. Telfeyan said it’s “a myth” that everyone on EM would otherwise be in jail: “I don’t see it as reducing the jail population,” he said. “I see it as simply applying to people who were very likely to have been released in a prior world [before EM became ever-present], but now are just released with this expensive ankle monitor.”

While it is true that the growing use of EM in America coincided with an overall downtick in incarceration, there is evidence to support the view held by Telfeyan, Shah and others. In 2021, VERA researchers found that the majority of counties with EM rates higher than the median also had jail populations above the median. Between 2020 and 2021 in Detroit, for example, the number of people on EM increased by 41%, even as the number of people sitting in jail on any given day increased by 60%. Though the technology is framed by its proponents as a tool for criminal justice reform, VERA’s research suggests it’s simply used instead as a means to expand the carceral state.

Pay to Stay Fees Efforts to Rein in Fees

Amid all of this, there is a hopeful and growing movement to eliminate EM and associated fees and fines to make the justice system more equitable for all. As VERA reported, “Advocacy and movement-based policy demands against EM had been circulating long before the coronavirus pandemic,” going back at least to 2014, when a coalition gathered to protest the Wisconsin DOC’s EM program—“an event that was likely the earliest major protest against EM in the United States,” according to tracking by another nonprofit, MediaJustice. Around the same time, prominent activist and researcher James Kilgore published a critical assessment of EM, which provided the foundation for “Challenging E-Carceration,” a national initiative he cofounded with Emmett Sanders to fight EM and other forms of criminal legal system surveillance.

As PLN reported, a landmark 2015 ruling by the Supreme Court of the U.S. established that attaching a monitor to released North Carolina prisoner Torrey Dale Grady could qualify as an unreasonable search and seizure under the Fourth Amendment if it was used to track his movements simply because he was a convicted sex offender. [See: PLN, June 2015, p.51.]

In Wisconsin, people ordered to wear a GPS monitor for the rest of their lives after being released from prison argued that the sentence violated their constitutional rights. In several other states, including Arizona and California, plaintiffs challenged the fairness of fines and fees imposed by publicly and privately administered EM programs. More recently, as ICE has expanded EM, advocates have filed lawsuits citing privacy concerns with the program.

In several states, legislative reform efforts accompanied anti-EM litigation—in Indiana in 2018 and New York in 2019, where bail reform also banned the use of government funds to pay private EM providers. That effectively shut down expansion of EM in New York. Illinois’s 2021 Pretrial Fairness Act made it the nation’s first state to require data collection on post-prison EM. The law also contained important provisions to guarantee a minimum level of mobility for completing essential tasks, require judges to review EM sentences for applying less restrictive conditions and making sure that pretrial EM days were credited toward a prison sentence. VERA credited these and similar efforts with mitigating GPS monitoring growth.

A 2023 DOJ report called on states to scrap fines and fees charged to parents when their kids are convicted of crimes. Far fewer well-off parents are held to account by such laws than the number of low-income families saddled with “weighty financial burdens” that leave them trapped “in a cycle of poverty and punishment that can be nearly impossible to escape.” Among the fees that DOJ targeted were those for court-appointed attorneys, ankle monitors, probation supervision and the cost of time spent in juvenile hall, which are disproportionately charged the Black and brown families and can amount to thousands of dollars per case. Wrote Associate Attorney General Vanita Gupta:

“Eliminating the unjust imposition of fines and fees is one of the most effective ways for jurisdictions to support the success of youth and low-income individuals, honor constitutional and statutory obligations, and reduce racial disparities in the administration of justice.” See: Fines and Fees Letter from AAG Gupta, DOJ (Dec. 2023).

Taking Aim at Juvenile Fines and Fees

Gupta’s directive followed an earlier DOJ letter outlining constitutional and public policy concerns related to low-income adult and juvenile offenders saddled with court system-related debt that crippled their futures: “When fines and fees are assessed against juveniles, the consequences to youth and their families can be particularly acute, with the potential to push young people further into the criminal justice system, drive children and their parents into debt, and put considerable strain on familial relationships. In many cases, unaffordable fines and fees only undermine public safety by impeding successful reentry, increasing recidivism, and weakening community trust in government.”

As of November 2024, the nonprofit Debt Free Justice counted Delaware, Illinois, Maryland, Montana, New Jersey, New Mexico, New York, Oregon and Washington where juvenile fines and fees have never been charged or have been abolished. The “Families Over Fees Act,” passed in California in 2020, eliminated 23 categories of criminal justice system fees, including those charged for public defenders, arrests and bookings, parole and probation supervision, home detention, EM and work furlough programs. A growing number of other states are passing similar reforms. State Sen. Wendy DeBoer of Nebraska, where lawmakers are nonpartisan, introduced a bill that would presume all children up through age 18 are indigent and exempt them from fees resulting from criminal justice involvement. The bill failed in April 2024, but not before she told colleagues: “Our justice system— particularly our juvenile justice system—should operate to promote safety, rehabilitation, and meaningful accountability without regard to an individual or family’s wealth or lack thereof.”

A recent Brennan Center for Justice report also proposed some solutions applicable to fees charged to both adults and juveniles—the clearest and most sensible being the requirement that local governments, not the people being supervised, pay associated fees. Some localities, including California’s San Francisco County and Maryland’s Baltimore County, have already taken this step. Since successful completion of probation and/or reentry from prison benefits the entire community, such a policy is only fair.

The Path Going Forward

FFJC has created a movement to rid the criminal justice system of fines and fees and the devastation imposed upon those incarcerated and their families. With campaigns in Florida, Nevada, New York and New Mexico, it has “developed broad-based coalitions from across the political spectrum including grassroots organizations, judges, public defenders, prosecutors, legislators, law enforcement, and faith-based and advocacy organizations.”

In California, state juvenile detention fees were abolished. Los Angeles County got rid of $90 million in debt owed for those fees. Illinois imposed uniformity in fees across the state and expanded fee waivers for the impoverished. Additionally, the newly created Illinois Office of Statewide Pretrial Services began overseeing EM in participating counties and paying the associated costs for those defendants ordered to wear GPS tracking devices.

VERA has also made several recommendations related to EM, including creating a national reporting requirement to the federal government and maintaining standardized data at local, state and federal agencies. VERA further recommended that private companies should not run EM programs; that the government should provide greater oversight of EM technologies, especially smartphone apps and wristwatch devices with biometrics; that EM conditions should be the least restrictive as possible; that agencies administering EM programs should eliminate user fees; that time served on EM pretrial should count toward any future sentence; and that use of detention should be restricted as a punishment for violating EM conditions.

But much work is yet to be done. In 2022, the National Center for Access to Justice at Fordham Law School developed a Fines and Fees Index, which assigned each state a score on a scale of 0 to 100 related to the justice of the state’s fines and fees legislation. No state received a passing score.

It’s easy to become disheartened with the present system, which will persist in some form well into the foreseeable future. But how that future system appears depends in large measure on how we fight today.  

Additional sources: Fast Company, Indianapolis Star, WFTS

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