(A longer version of this article originally appeared in Truthout.)
Despite the “law and order” vows of Attorney General Jeff Sessions, states and counties continue to take steps to reduce prison and jail populations. In August, Cook County initiated a special court dedicated to setting bond for people with felony cases. The mandate of the court is to set bond at a level the charged individual says they can afford.
Such efforts have been inspired by grassroots movements calling attention to the injustices of money bond. Reformers contend that releasing people with no cash bond or an affordable bond will allow them to keep their jobs, hold onto their housing, carry out caregiving responsibilities and more effectively mount a legal defense.
In addition to bail reform, early release programs are expanding at the state level. Most recently, Oklahoma, which has the highest incarceration rate for women, is looking at releasing 1,500 people within the next few months.
Nearly all of these initiatives have an unacknowledged Achilles heel: uncritical acceptance of electronic monitors (EM) as an alternative to incarceration. Typically taking the form of ankle bands and house arrest, monitors are gaining lots of traction in reform packages.
Despite a lack of serious research on monitors, EM has become a preferred option. Leading firms in the EM market, like private prison operator GEO Group and carceral phone provider Securus Technologies, have escalated promotion efforts.
Before electronic monitors become part of the DNA of the criminal legal system, we need a deeper exploration of this technology and its impact.
To begin with, there is a lack of legal consensus about whether electronic monitoring constitutes a form of incarceration. Most states say no. This means that if a person spends time on a monitor during the pretrial phase and they end up being sentenced to prison, time spent on the monitor is not deducted from their total sentence. By contrast, time spent in jail is deducted. There are exceptions. Illinois statutes give credit for time served on home detention in most instances, but actual practice presents contradictions.
While legal definitions remain murky, the punitive nature of most EM regimes is crystal clear. In most instances, individuals on a monitor must request permission from a judge or probation officer to get “movement” from their home. The purpose of movement and the precise time out of the house need to be specified. Moreover, monitoring regimes rarely state that a person is “entitled” to or has a “right” to be granted movement. In many instances, even unauthorized movement in response to an emergency can lead to re-incarceration. In one notorious Michigan case, Kent Shultz ended up in jail for unauthorized movement when his apartment burnt down.
The increased use of GPS-enabled devices, which track and record an individual’s location, compound problems with regard to movement. By contrast, devices using the older radio frequency technology only indicate if a person is at home. With GPS, monitored individuals typically must submit a schedule of all their movements a week or two in advance. Some GPS devices program in “exclusion zones,” so that an alarm is sounded if a person enters a forbidden area of the city. At least 10 states allow for lifetime GPS monitoring for certain categories of offenses.
The Experience of EM: The Voice of the Monitored
While legislators and legal scholars may debate whether house arrest constitutes incarceration, Johnny Page has no doubt. He spent 90 days on a monitor after serving over 23 years in Illinois prisons. “It’s like being locked up but you’re paying your own bills. You get to feed yourself, you don’t have to fight for the telephone, you don’t have to fight for the shower, but you’re still in jail.”
Topeka K. Sam was placed on a monitor in New York City after serving a term in federal prison. She referred to the device as a “shackle” rather than a “bracelet.” She said the shackle was “suffocating,” and called EM “transincarceration,” moving people from “inside the prison walls to inside these prison walls in the community … and it does not reduce harm.”
The experience of Father David Kelly, who directs a restorative justice center for youth in Chicago’s South Side, raises another concern. A number of youth participants in his programs are on monitors. He says the majority end up violating the strict house arrest terms of EM and get sent back to jail. He says authorities operate under false assumptions that staying at home will shield these young people from the “temptations” of the streets. “Their houses are not stable,” Father Kelly says, “not places where you have your own bedroom you just go to and there’s a lot of privacy.” Kelly cites cases of individuals who don’t even have a residence being put on house arrest.
A common argument for pretrial release on monitors is that it removes the pressure to accept a plea bargain to get out of jail. However, the case of Chicago’s Lavette Mayes highlights that extreme versions of house arrest can create a similar degree of coercion. For Mayes, being out on an electronic monitor was supposed to enable her to fight her case while looking after her two children. However, her rules were so strict she couldn’t even take out the garbage without explicit permission. Mayes finally opted to halt her legal battle and plead guilty to a felony, her first-ever such conviction. Ultimately, she said the pressure on her family compelled her to take the deal, especially since she was staying with a relative. She recalled frequent searches of the house. “The people who have not done anything are constantly being incarcerated with the person,” she said.
Paying for EM
User fees have become increasingly common for electronic monitors, with daily tariffs sometimes reaching as high as $25. My own research in 40 counties in Illinois revealed daily fees ranging from $10 to $15 a day, with set-up fees up to $70. In fact, “self-financing” is one of the major marketing tropes for EM providers, promising to save money for state and local governments. 3M, a major EM provider advertises their “Offender Pay System” as “easy and convenient to use.”
The Future of EM As an Alternative
Rebecca Brown, who has studied juvenile electronic monitoring extensively in parts of the San Francisco Bay Area, rejects the notion that the alternatives are “lock ‘em up or hook ‘em up.” Brown looks at EM as “an insidious new form of incarceration” that uses “high-tech shackles” to convert public and community spaces into “open air prisons.”
In Philadelphia, Soros Justice fellow and long-time activist Hannah Sassaman expresses similar concerns. She argues that policy makers often try to ignore stories of individuals who experience the punitive nature of EM by casting them as “outliers” or “exceptions to the rule.” In fact, she asserts, “they are the rule.” For her, the solution is to move toward more “transparent processes” that involve those directly impacted.
Real decarceration requires more participatory policy-making processes and the allocation of resources to employment opportunities, mental health services, substance abuse treatment, and more public housing, alongside powerful anti-racist campaigns.
For Topeka K. Sam, electronic monitoring does not ultimately hold the key.
“If you’re talking about decarceration, there are other ways to do that,” Sam said. “This is not it.”
James Kilgore is an activist, writer and educator based in Urbana, Illinois. He is the author of Understanding Mass Incarceration: A People’s Guide to the Key Civil Rights Struggle of Our Time (The New Press, 2015). He is presently a Soros Justice fellow spearheading “Challenging E-Carceration” a campaign focusing on the use of electronic monitoring in the criminal legal system. He can be contacted at firstname.lastname@example.org or @waazn1 or on his website at: challengingecarceration.org