7
WIDENING THE NET
“The public doesn’t look at people with ankle monitors and say, ‘There’s an innocent person.’ They say, ‘What did that person do?’”
WHEN JOHN WAS BAILED OUT OF JAIL IN LOUISIANA AND FITTED WITH AN ankle monitor to await trial, he thought it would be easy. “I was thinking all I had to do was not do the wrong thing and be inside for the right amount of time,” he told me. A bondsman paid his bail, and he was sent home with an ankle monitor and two hefty debts: $250 per month to repay the bondsman, and $180 per month to the parish (the name for counties in Louisiana) for the monitor.
But then the pain started. The monitor got hot, especially when he was charging it—which he had to do twice per day, each time for around two hours. People who wear monitors can’t remove them, of course, so charging them essentially requires that they plug themselves into the wall. The monitor left burn marks on his skin, and he worried that it would interact badly with the bullet wounds in his leg.
John (not his real name) lives in a parish in Louisiana that uses electronic monitoring (EM) as a way to keep tabs on people before trial. EM use is on the rise: a study by the Pew Charitable Trusts found that from 2000 to 2015, the number of people on some form of EM rose from 53,000 to more than 125,000. The number is almost certainly higher now. Pew’s figure only includes people accused or convicted of criminal offenses; it does not include the large and growing number of undocumented immigrants awaiting trial under EM.
Around 471,000 people each day are jailed awaiting trial, making up most of the total jail population. (In America’s carceral system, “jail” is where defendants await trial, or where people serve short sentences for minor crimes; “prison” is where people serve longer sentences for more serious crimes. This figure is just for jails.)1 Pretrial detention costs American taxpayers $14 billion per year. According to the Pretrial Justice Institute, an advocacy group, 95 percent of the growth in America’s jailed population from 2000 to 2014 came from people who had not been found guilty of any crime.2
As in the rest of America’s criminal justice system, racial bias helps determine who awaits trial behind bars and who gets released. Some studies have found that African American and Latino defendants face higher bail amounts than whites, are likelier to be detained for similar crimes, and are less likely to be released without bail. Despite laws that are supposed to restrict pretrial detention to people who are either dangerous or a flight risk, the overwhelming majority of pretrial detainees are in jail simply because they cannot afford their bail.
This obvious injustice (the United States and the Philippines are the only two countries that still routinely use cash bail) has prompted states and cities to begin eliminating it. Despite evidence showing that reminders, such as texts and phone calls, get most people to show up for their trials, many judges—especially elected judges—are reluctant to simply release most arrestees on their own recognizance. EM lets the state monitor detainees and costs far less than jail; in fact, most places that use EM charge detainees for their own monitoring.
EM advocates argue that being monitored out of jail is better than being in jail. People with monitors can work, maintain the family relationships critical to reducing their chances of reoffending, and participate more fully in their own defense. But “better than jail” is a low bar to clear. EM often comes with conditions that set detainees up to fail.
EM has tremendous promise—but not so much as a way of subjecting people who are still innocent in the eyes of the law to state control. Rather, its promise comes from its use as an alternative to incarceration after conviction. In this chapter, I’ll explain that distinction, and I’ll do so by examining the aftermath of two fights that took place years and an ocean apart.
We’ll start with the later fight, which took place in Indianapolis in May 2019. Kathleen, a genial, red-haired fifty-two-year-old woman, told me about it on a quiet September morning in downtown Indianapolis. I met her at the offices of Project Lia, a nonprofit that trains formerly incarcerated women to make accessories and home furnishings from discarded materials. Kathleen had made several chic aprons from discarded fabric.
A few months earlier, when she was on probation for an earlier charge, she got into a heated argument with her roommate, who called the police. Kathleen was arrested for intimidation and disorderly conduct and taken to jail. There, she languished for three weeks, because she neither had $500 for her cash bond nor knew anyone who did. Eventually, her public defender contacted the Bail Project—a national nonprofit that, as of September 2019, had bailed nearly seven thousand people out of jail. The organization paid for Kathleen’s release.
As a condition of her release, however, she had to go straight from jail to a municipal building to get fitted with an ankle monitor. She was charged a $50 “activation fee” and then $13 per day, which is one dollar less than the highest rate charged by Marion County, where she was jailed, for EM. That works out to nearly $400 per month; include the activation fee, and it’s just $50 less than the bail she could not pay.
Tyler Bouma, Marion County’s head of corrections, told me in an email that “there are several mechanisms in place to lower these fees, the court can set a lower fee, the court can find the client [which is a deeply weird and euphemistic way to characterize someone whom his county has imprisoned] indigent, our case managers can work with the client using a financial application to determine a need for a lower fee, or even indulgence.” Kathleen found the application burdensome and confusing; Bail Project staff told me that was not unusual.
Kathleen said that detainees must pay the activation fee within forty-eight hours of the monitor being turned on or they get “violated”—meaning sent back to jail to await trial. She balked at the cost; her attorney said she would be arrested and in violation if she didn’t come up with the money. But, as Kathleen noted, “just because you say I have to pay $50 doesn’t mean I have $50.”
The monitors have a GPS locator; some also have an alcohol-monitoring sensor. Like most monitors, hers used geotagging to make sure she was where she was supposed to be—namely, at her apartment, unless she got permission to be somewhere else. (Authorities can set the device’s parameters as needed. They can restrict users to or from a certain area.) If Kathleen crossed the street to talk to a neighbor, an alarm would sound. “They’d call and ask what’s happening,” she told me, “and if you don’t have a good answer, they’ll violate you.”
That seems reasonable enough, if annoying to the wearer: ankle monitors are supposed to keep track of the wearer’s location. But a lawyer I contacted told me about a client on EM who found that an escape alarm sounded whenever he went to the laundry room in his apartment complex. Some who live in trailers found that the metal walls blocked the transmitter’s signal, which also triggered an escape alarm.
A detainee who gets permission to leave home for two hours for a job interview must hope their interviewer keeps to schedule and the bus for the return home doesn’t get caught in traffic. Then there are errands to run, child care to manage, and various minor emergencies—imagine having to completely plan outings in advance, asking permission days ahead of time for the most basic deviation from your usual habits. Triggering an alert requires wearers to plead their cases to the police, whose disbelief can send them back to jail.
Alarms also sound when the monitor runs out of batteries. Tyler Bouma said Marion County’s monitors “hold a charge for greater than twelve hours if properly charged twice daily for one hour each time.” But things happen. Perhaps the monitors don’t always work as advertised. Perhaps, every so often, someone forgets to charge it: many people on EM have unstable housing arrangements, which can make regular, predictable charging difficult.
Kathleen said her monitor sounded an alarm on her way back from a job interview. She had ten minutes of battery life left, but was still forty-five minutes from home. She had to get off her bus and go into the various businesses she passed, asking if she could plug herself into the wall for an hour.
John said the monitor cost him two jobs: one because his curfew wouldn’t work with the hours he was offered, another because the alarm on his malfunctioning monitor sounded every two hours, which his manager found “unprofessional.” That had costs beyond just a loss of income. “When you get fired, it’s different from you quitting,” John told me. “I can’t go back to these jobs. My reputation is bad because of the monitor.… I was going through people to get those jobs. Because of my jacket, I can’t get put on certain jobs. People I knew were speaking up for me. When the monitor backfired on me it made them look bad.”
John was on EM for around four months, Kathleen for a month before her attorney convinced a judge to remove it, because she couldn’t pay and the conditions impeded her from finding a job. I don’t know whether John’s lawyer made similar petitions; they were in different jurisdictions, charged with different crimes, and facing different judgments. But it still seems worth pointing out that John is African American, whereas Kathleen is white.
Collateral consequences linger for both of them. For John, it’s his reputation. For Kathleen, even though her charges were dismissed after her ex-roommate failed to show up to court, she still owes Marion County hundreds of dollars for her monitoring.
The fees are onerous, but they represent just part of the problem with EM. James Kilgore, who spent six and a half years in prison before becoming a researcher and activist in Illinois, gently chided me when I called him to discuss EM’s costs. “I’m concerned that a lot of journalists are flocking to stories where people are being charged outrageous fees,” he said. “What readers take away from that is if we just got rid of the fees it would be okay. The real problem is it’s a denial of people’s freedom; it’s a surveillance device; and it’s doing a lot of things that mess up their lives in addition to the fees.” Kilgore referred to EM as “e-carceration,” and he’s leading a campaign to restrict—or at least think more carefully about—its use.3
Through onerous conditions, EM can wipe out two major advantages of awaiting trial at home rather than jail. First, one of the reasons why jailed defendants have higher conviction rates than those accused of similar crimes who await trial at home is that the latter can actively participate in their own defense. They can meet with their lawyers more easily, find helpful witnesses, and so on. Restrictive EM conditions, such as having to request permission days in advance for a meeting with a lawyer or a potentially helpful witness, make that difficult.
Another reason why defendants jailed before trial have significantly higher conviction rates is that they plead guilty—particularly when accused of less serious crimes—just to move on with their lives. To someone who has never been caught up in the criminal justice system, this may seem incomprehensible: if you didn’t do anything, then fight the charges, and the truth will (literally) set you free.
But imagine if you were jailed awaiting trial on a drug possession charge. You don’t have money for bail; neither does anyone else you know. The drugs weren’t yours—they were your friend’s, but found in your car.
At your first and only pretrial meeting with your dedicated but overworked public defender, she presents you with a choice: Plead guilty, and the prosecution will agree to time served, with one year on probation. Or go to trial in ten months, in which case the state will seek a maximum sentence of fifteen years. You probably won’t be sentenced to the maximum, but you could easily get five years, maybe eight. In other words, plead guilty, go home, and accept being convicted for a crime you didn’t commit, or spend another ten months in jail and face an uncertain outcome at trial. This sort of thing isn’t limited to drug crimes, or to cases in which the defendant is innocent. The “trial penalty,” as it’s known—the tendency to receive a stiffer sentence if you insist on taking your case to trial—can induce a lot of people to go along with the plea bargaining on offer.
EM is less coercive than prison. But it’s still pretty coercive. If you are a poor defendant who owes (or whose family owes, on your account) $1,000 to a bail bondsman, and you face six months of daily $13 charges, adding up to well over $2,000, you may take a guilty plea to save the expense—and the stigma. People on pretrial EM have not been convicted of anything, remember—they are innocent in the law’s eyes. And yet, says David Gaspar, the Bail Project’s operations manager, “the public doesn’t look at people with ankle monitors and say, ‘There’s an innocent person.’ They say, ‘What did that person do?’”
Instead of viewing EM as an alternative to jail, it may make more sense to view it as jail in an alternative location. Whether in jail or on EM, people who have not been convicted of any crime are subjected to perpetual surveillance and carceral control. They can have privileges revoked—be sent to solitary if they’re in jail, or sent to jail if on EM—on a guard’s or officer’s say-so, with little chance for appeal.
James Kilgore has created a list of ten principles to make EM use more humane. Collectively, they call for fewer restrictions on movement, using GPS-tagging as a last resort rather than a default option, not charging wearers for their own surveillance, not implanting recording devices in monitors, and not using EM to widen the state’s surveillance net. His recommendations are eminently sensible, though they are an indictment of the American criminal justice system. The system and the general public view EM—that is, subjecting people who are supposed to be presumed innocent to perpetual surveillance, in a way that holds their freedom in the balance, and charging them for the privilege—as a humane and progressive advance.
Clearly, EM is not the progressive advance that people so often deem it to be. But that doesn’t mean it should be cast aside entirely—and here we come to our second fight. This one took place a couple of years back, just outside Stockholm, in Sweden. Carl went to a pub near his home with his two daughters, who were both in their early twenties.
Here’s how he explained to me what happened: “We went to a local pub [near] where I lived with my two daughters, and they started arguing with some other girls and boys. I was thinking I must separate these guys now. Then I was dragged down to the ground and it all happened so quick. My side of the story is that I defended my two girls, and the other girls reported me for assaulting them. That’s the crime I’m doing time for now. I feel misjudged in this. But this is how our government sees it.”
Carl was sentenced to six months’ imprisonment for assault. But under Swedish law, anyone sentenced to prison for six months or less can apply to serve their time at home, using EM. Applicants must have a job, stable housing, and no drug or alcohol problems. Carl’s application was successful. At the time, he was forty-five years old, owned a painting firm that employed twenty-three people, and lived with his wife and daughters just outside Stockholm. He had never been convicted of another offense. All of these factors presumably counted in his favor. “It would have been a disaster if they had put me in jail—financially, economically—and I don’t know how my marriage would have been,” said Carl.
When I talked with him, he had just finished about a month and a half on EM. “This works pretty good for me,” he said. “I can go to work. I have a schedule from our government that says between 6 a.m. and 5 p.m., that’s my work hours. So I must go about 5:45 every morning. If I go to my office, I have a travel time of forty-five minutes. If I go somewhere else—to a meeting, or to visit my painter who isn’t at work—I will send an SMS [to let police know] where I go. And every time I change places or directions, I just send a text or SMS. They know where I am, and they have a car that scans, so they can scan if I really am at that address where I’m texting them. It’s free. The only thing is I must remember to text them.”
Carl says the monitor isn’t too burdensome. On Sundays during the first month, he had two free hours. In the second it went up to three, then four after that. I spoke with Carl when I visited Stockholm in early March 2018. “Sweden, in the winter,” he said, “is cold, it’s dark, we don’t do that much in the evenings. It would have been harder if I had this device in the summer.” In addition, “in winter you wear long pants. You can’t see this device. People don’t notice.… People don’t know unless I tell them.”
Alcohol is forbidden to people sentenced to EM in Sweden, so at random times, probation officers come to Carl’s house to make him blow into a Breathalyzer. “They can come whenever they want—
3 a.m., 10 in the evening, 6 a.m.,” said Carl. They can also take blood and urine samples to test for drugs. A positive test for any banned substance sends the offender to serve the rest of his time in prison. Most of the 10 percent of people who failed to complete their sentences on EM and were returned to prison failed because of alcohol use.
The advantages of EM to people like Carl are clear. They can work and serve their sentence at home; conviction need not mean joblessness and strained or sundered family relationships. But there are broader societal advantages, too. People who work pay taxes, contributing to the state’s general economic welfare, which imprisoned people cannot do. According to Helena Lundberg, a criminologist with Sweden’s justice ministry, imprisoning someone costs Sweden just over $300 per person per day, as opposed to just $45 with EM.
In addition to using EM as a replacement for imprisonment, the Swedish system lets long-term prisoners (which in Sweden, believe it or not, means anyone who has spent more than six years behind bars) use EM to serve the last six months of their sentences. This program helps them reacclimate to living at home. Violent criminals are ineligible for replacement EM, but no such restriction exists for “back-end” EM.
Like replacement EM, back-end EM requires prisoners to apply and get approved. One probation officer explained, “The system knows them. We have documentation—they’ve been home on leave, they have good behavior. Of course, they can be murderers and rapists. But they’re easier to work with [than, say, a tough young knucklehead arrested for the first time]. They understand schedules. They wake up and go to work. They have a goal: I want to go home with my family and go to work.”
A different use of EM also helps keep Swedish prison costs down: it replaces some guards at low-security prisons. Prisoners are geotagged; if a prisoner crosses the prison’s boundary, an alarm sounds.
I’m not sure exactly how much time I spent open-mouthed while talking to Swedish probation officers, ministers, and criminologists, but it was a nontrivial amount. Both probation officers I spent time with were trained social workers. The prosecutors were sober and deliberative. Prisoners and people on EM get job training, life-skills classes, and more—Swedish prisoners can study psychology, law, and economics. They get cognitive behavioral therapy. The system was different from anything I had previously studied—focused, to its everlasting credit, almost entirely on rehabilitation rather than retribution.
Even before Sweden introduced EM in 1994, its criminal justice system was biased toward letting people serve noncustodial sentences whenever possible. Jan Bungerfeldt, a legal adviser for the Swedish National Board for Institutional Care, explained in a 2013 article that the whole concept stems from a belief that “prison is at best unproductive and in some cases counter-productive in terms of reducing re-offending, and then creates a problem of resocialization back into the community.” Just 17 percent of Swedes sentenced to EM reoffend within a year of completing their sentence, compared to over half of those who do six months or less in prison.4
Yet the most interesting study related to EM comes not from Sweden, but from Argentina. This study tried to determine whether EM or imprisonment was better at cutting recidivism rates. This is where you will probably scratch your head (as I did) and say, “EM, of course”—assuming there must be a sheaf of studies from multiple states showing just that.5
But there’s a problem: since EM usually goes to nonviolent prisoners serving brief sentences—in Sweden, much of the rest of Europe, and the United States—these studies don’t really compare like with like. Perhaps prisoners eligible for EM were already on the glide path toward nonrecidivism, and would have done fine even if they’d been sent to prison, criminogenic as it is, to serve their brief sentences.
The study from Argentina addressed that problem by examining a group of offenders, violent and nonviolent alike, who received EM more or less at random. (They were assigned randomly to judges with strong ideological differences; some almost never used EM, while others used it freely.) The study found “a large, negative causal effect on criminal recidivism of treating individuals with electronic monitoring relative to prison.” In other words, those on EM were less likely to return to prison after they had completed their sentences than those who had served their time behind bars. To be precise, the ones on EM—regardless of the crime committed, their education levels, or their ages or employment status—had a recidivism rate 11 to 16 percent lower than those who were sent to prison. Moreover, in Argentina those on EM received none of the counseling or intense supervision that the Swedes on EM receive. All of this suggests that the best way to keep people from repeatedly committing crimes and returning to prison is never to send them to prison in the first place.
Given how different Sweden’s system is from America’s, in particular—but really, from much of the non-Scandinavian world—it is tempting to dismiss its use of EM as commendable, but not replicable. And as long as a justice system remains focused on punishment rather than rehabilitation, that dismissal would not be entirely wrong.
But there are still lessons that other systems can take from Sweden. First, as someone with the Swedish probation service told me, “if you want to change someone, just putting a monitor on won’t do it. It’s how you work with them. [Someone on EM] is given trust, responsibility, and confidence that he can come through it.” They also get training and coursework—not just to help them cope better with the outside world, but to remind them that they have minds worth using. In other words, Sweden does not warehouse prisoners; they do not lock them up and throw away the key. Eventually, almost everyone in jail—even in the United States—will get out, and become someone’s neighbor. The Swedish system trains prisoners to be the best possible neighbor.
Ankle monitors differ from other forms of tech discussed in this book. The monitors gather information, but as far as I know they do not store it indefinitely. Ankle monitors with recording devices that can be turned on at the state’s will should make everyone nervous, but they do not threaten the general populace in quite the same way as facial recognition or automatic license plate readers.
EM still represents a way in which technology expands the carceral state—and therefore, another opportunity for us to think about what we want from our criminal justice system. Putting people on EM costs the state less than sending them to jail, and, superficially at least, it seems to comport with the widely accepted societal goal of incarcerating fewer people.
Jailing people before their trials as a matter of course is unjust, but it’s also bad policy. Many believe that it’s the only way to get people to show up for trial. But there is evidence to the contrary. The Bronx Freedom Fund paid bail for around two thousand low-income New Yorkers charged with misdemeanors who could not afford bail between 2007 and 2017. During that time, 96 percent of the people they bailed out showed up for all their court dates, and in 55 percent of the cases the charges were dismissed. Robin Steinberg and David Feige, the Freedom Fund’s founders, said the best way to get people to show up for court is also the best way to get anyone else to show up for a necessary appointment: frequent reminders—phone calls and text messages.6 A study by the University of Chicago Crime Lab reached a similar conclusion—text messages dramatically reduce failures to appear.7
But surveilling people who have been accused of a crime all the time, with the risk of jail hanging over their heads for slight rule infractions, is not much better than jail. Some people, of course, are hardened criminals, and ought to be locked up to keep the public safe. But most people aren’t. People who run bail funds will tell you that the most effective way to get someone to show up for trial is simply to remind them—call them, text them, bang on their door in the morning. EM may cost less than prison, but texts and phone calls cost even less, and do not subject innocent people to constant surveillance.