Electronic monitoring (EM) is on the rise. The number of people supervised by devices more than doubled between 2005 and 2015, from 53,000 to 125,000 (excluding immigration cases).1 Many of these cases likely involve women and men who are awaiting trial. So it bears asking, What is the proper role of EM in pretrial cases?Let’s consider three basic questions about electronic monitoring: Is it legal?, Does it work?, and Is it fair?
From a legal standpoint, in the pretrial phase practices must weigh in favor of liberty, with exceptions only when court appearance and public safety cannot be “reasonably managed” in the community. Moreover, when conditions of release are set, they must adhere to the principle of least restrictive conditions—not “It’s better than being in jail.” As a practical matter, many people experience EM to be very invasive—with many of the consequences associated with detention.2
From a research standpoint, practitioners should consider whether EM actually accomplishes what it is supposed to accomplish before trial, which is promoting public safety and court appearance. A 2011 survey of research on pretrial EM3 found that “utilizing EM as a condition of pretrial release does not reduce failure to appear or rearrest”. Additional research may be necessary to gauge the efficacy of EM in limited, specialized cases.
As for fairness, jurisdictions must create safeguards against the possibility that EM—or any new practice—may be implemented to the disproportionate detriment of poor communities and communities of color. Transparent data collection and analysis with a racial and ethnic lens is paramount.
With these three concerns in mind, we offer the following considerations regarding the use of EM:
The Allegheny County (PA) Pretrial Services Department is an example of a jurisdiction that uses EM sparingly. In Allegheny County, pretrial electronic monitoring is the highest level of community supervision, and is designated for people with lengthy criminal records, serious criminal charges, past violations of bail conditions, and who have a history of failing to appear for court.7 For 2017, the county’s pretrial services conducted 20,052 initial investigations; of that number, fewer than 1% (177 cases) were placed on pretrial EM during the year. The average person was on pretrial EM for 88 days, and the program had a 71% success rate, meaning compliance with all conditions of release, and attendance with all court dates with no new arrests.
In summary, proceed with caution and always question the appropriateness and necessity for EM. Least restrictive conditions are not just the legal requirement, they are also supported by research for their effectiveness.
1The Pew Charitable Trusts, Issue Brief: Use of Electronic Offender-Tracking Devices Expands Sharply (September 7, 2016). http://bit.ly/2bWAXwF
2James Kilgore, Electronic Monitoring Is Not the Answer: Critical reflections on a flawed alternative, Center for Media Justice (October 2015). http://bit.ly/1ZK3qWz
3Marie VanNostrand, Kenneth J. Rose, and Kimberly Weibrecht, State of the Science of Pretrial Release Recommendations and Supervision, pp. 24-27, Pretrial Justice Institute (June 2011). http://bit.ly/2G2ZcEA
4Edna Erez, Peter R. Ibarra, William D. Bales and Oren M. Gur, GPS Monitoring Technologies and Domestic Violence: An Evaluation Study, National Institute of Justice Award Number: 2007-IJ-CX-0016 (June 2012). https://www.ncjrs.gov/pdffiles1/nij/grants/238910.pdf
5Chicago Community Bond Fund, Punishment Is Not a “Service”: The Injustice of Pretrial Conditions in Cook County, p. 13 (October 24, 2017). https://chicagobond.org/docs/pretrialreport.pdf
6Nuala Sawyer, S.F. May Eradicate City’s Court Fines and Fees, SF Weekly (February 6, 2018). http://www.sfweekly.com/news/s-f-may-eradicate-citys-court-fines-and-fees/
7Allegheny County Pretrial Services, 2015 Annual Report, p. 10. https://www.alleghenycourts.us/downloads/criminal/adult_probation/pretrial/2015.pdf