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| Allison Frankel |
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| Ayomikun Idowu |
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| Yazmine Nichols |
However, in reality, electronic monitoring creates mobile, digital prisons that regularly lead people back to physical incarceration.[2]
Ultimately, electronic monitoring should be replaced with less restrictive and more effective measures. Until then, defense attorneys can play a crucial role in challenging the use of electronic monitoring and defending clients' liberty.
Keeping clients out of physical incarceration is, of course, a critical priority. Imprisonment jeopardizes peoples' physical health,[3] mental health,[4] safety,[5] employment,[6] housing,[7] finances and ability to care for dependents.[8] It also weakens their ability to fight their case.[9]
Seeking release on electronic monitoring can be a tempting option because it keeps people in their communities, while ostensibly satisfying the government's desire for assurances that people will not commit harm or evade court proceedings.
In reality, no evidence shows that electronic monitoring actually serves its purported goals.[10] Meanwhile, electronic monitoring's intrusive surveillance; strict movement restrictions that limit how often people can leave their homes, for how long and for what purposes; cumbersome requirements and steep costs make basic daily tasks even harder.[11] Electronic monitoring can impede everything from holding down a job to running errands or caring for loved ones.
Additionally, people must generally pay for their own monitors — potentially hundreds of dollars a month,[12] which many cannot afford.[13]
Standard requirements to keep the monitor charged and connected to Wi-Fi are virtually impossible for people experiencing homelessness. And high numbers of people in the criminal legal system have disabilities[14] that make wearing a monitoring device, and understanding and following standard rules, impracticable.
Given structural racism, people of color, especially Black people, are more likely to be put on electronic monitors, and less likely to have the resources needed to navigate monitoring rules.[15]
It is thus unsurprising that electronic monitoring easily leads to physical incarceration for technicalities,[16] such as failing to charge the device, running errands in excess of allotted movement hours, or technical malfunctions.
In Los Angeles County in 2020, 35% of people subjected to electronic monitoring pretrial were terminated from the monitoring program — virtually all of them, 94%, for technical rules violations, not new arrests or absconding.[17]
Despite electronic monitoring's unproven track record and clear harms, many judges, and other authorities like parole boards, reflexively impose EM — without making any finding that it is necessary or appropriate. Defense attorneys can intervene to challenge EM's overuse.
While each jurisdiction's standards and requirements differ, and each case will present its own strategic considerations, there are several arguments attorneys should consider[18] when electronic monitoring is a possibility during pretrial, probation and parole, or immigration proceedings.
Attorneys should argue that physical and electronic incarceration are inappropriate where their client does not pose a risk of willfully fleeing the legal proceedings or harming another person.
This involves harnessing evidence of their client's community ties and lack of safety risk, such as employment or school-enrollment records, child care responsibilities, letters of support from family or community members, and record of prior court attendance.
Attorneys should also challenge electronic monitoring under the Fourth Amendment, 14th Amendment and Americans with Disabilities Act.
Many monitoring orders require people awaiting trial to sign away their Fourth Amendment rights, ostensibly consenting to random searches of their person, possessions and/or home. Defense attorneys should inform their clients about the dangers of such waivers, and argue that the waivers are unconstitutional conditions that require their client to exchange their right to be free from unreasonable searches for the right to pretrial liberty.[19]
Where appropriate, attorneys should contend that there is no connection between the object of the search and the harm to be avoided — i.e., nonappearance in court or danger to the community — and that the waiver is a general waiver, which functions as a prohibited law enforcement search, rather than an administrative search tailored to meet a particular government interest.
Attorneys can further argue that monitoring itself constitutes a 24/7, year-round search in violation of the Fourth Amendment, drawing on the U.S. Supreme Court's 2018 decision in Carpenter v. United States.[20]
Additionally, attorneys should challenge electronic monitoring where their clients' socioeconomic status, housing or disability will make compliance impracticable. In 1983, the U.S. Supreme Court prohibited governments from incarcerating people simply because they cannot pay in Bearden v. Georgia.[21] Accordingly, attorneys should argue that imposing electronic monitoring with unaffordable costs risks violating Bearden.
Courts should not require people to pay for their own monitoring — or at the very least, courts should lower costs so that they are actually affordable, and remove payment of costs as a condition of peoples' freedom.
The same principle applies to other impracticable conditions — such as requirements to charge monitors when an individual lacks stable housing.
Applying Bearden and due process principles, the Mississippi Court of Appeals held last year in White v. State that it is unconstitutional to incarcerate someone for failing to comply with a release condition that, "through no fault of [their] own," they cannot follow — in this case, reporting when the individual lacked housing.[22]
Similarly, the Massachusetts Supreme Judicial Court held in 2010 in Commonwealth v. Canadyan that revoking probation for failure to charge a monitor, where an individual lived in a homeless shelter that lacked access to a charging port, was impermissibly "akin to punishing the defendant for being homeless."[23]
Other courts have likewise recognized that the Constitution forbids punishing people for their status or involuntary conduct, including homelessness.[24]
In still other cases, lawyers should invoke the ADA to argue for reasonable accommodations that allow clients with disabilities an equal opportunity to remain in their community during the monitoring period.[25] Accommodations could include providing plain-language instructions that people with intellectual disabilities can comprehend, or allowing extra movement hours for people whose disabilities require frequent medical appointments.
As an alternative to electronic monitoring, attorneys can suggest a range of options that demonstrably improve court appearance without expanding the harms of incarceration. These include text message reminders and court transportation; offers to have the client regularly check in via phone with a supervising officer; and offers to have clients surrender their driver's license in exchange for a temporary license.
When electronic monitoring is imposed, defense attorneys can appeal the decision, challenge unaffordable costs, seek additional movement hours and file periodic motions for review.
Ultimately, policymakers must replace electronic monitoring with less harmful, and more effective, measures. Until then, defense lawyers can play a critical role in restricting electronic monitoring's use and limiting its inherent harms.
Allison Frankel is an Equal Justice Works Fellow, sponsored by Venture Justice Fund, with the American Civil Liberties Union's Criminal Law Reform Project and Human Rights Program.
Ayomikun Idowu is a paralegal with the ACLU's Racial Justice Program.
Yazmine Nichols is a former Justice Catalyst Fellow with the ACLU's Criminal Law Reform Project.
They are the authors of the ACLU's report, "Rethinking Electronic Monitoring: A Harm Reduction Guide."
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2016/09/use-of-electronic-offender-tracking-devices-expands-sharply.
[2] https://www.aclu.org/report/rethinking-electronic-monitoring-harm-reduction-guide.
[3] https://www.aclu.org/news/topic/how-the-covid-19-pandemic-is-devastating-incarcerated-people-and-their-communities.
[4] https://www.prisonpolicy.org/blog/2021/05/13/mentalhealthimpacts/.
[5] https://www.motherjones.com/crime-justice/2022/10/rikers-island-dangerous-conditions-photos-squalid/.
[6] https://www.prisonpolicy.org/blog/2022/02/08/employment/.
[7] https://www.urban.org/features/five-charts-explain-homelessness-jail-cycle-and-how-break-it.
[8] https://www.hrw.org/report/2018/09/26/you-miss-so-much-when-youre-gone/lasting-harm-jailing-mothers-trial-oklahoma.
[9] https://www.vera.org/downloads/publications/Justice-Denied-Evidence-Brief.pdf.
[10] https://www.aclu.org/report/rethinking-electronic-monitoring-harm-reduction-guide.
[11] https://issuu.com/gwlawpubs/docs/electronic-prisons-report?fr=sOGI5NDcxODg3.
[12] https://finesandfeesjusticecenter.org/articles/electronic-monitoring-fees-a-50-state-survey-of-the-costs-assessed-to-people-on-e-supervision/.
[13] https://www.prisonpolicy.org/poverty.html.
[14] https://www.prisonpolicy.org/blog/2017/08/23/disability/.
[15] https://www.vera.org/jail-incarceration-in-wayne-county-michigan/reducing-the-overrepresentation-of-black-people-in-the-jail-population-and-criminal-justice-system-more-broadly; https://www.brookings.edu/research/long-shadows-the-black-white-gap-in-multigenerational-poverty/.
[16] https://www.aclu.org/news/criminal-law-reform/jailed-for-a-faulty-battery-and-left-to-catch-covid-19.
[17]https://law.ucla.edu/sites/default/files/PDFs/Criminal_Justice_Program/Electronic_Monitoring_in_Los_Angeles_Report-FINAL.pdf.
[18] https://www.aclu.org/news/criminal-law-reform/defense-attorneys-tips-for-challenging-electronic-monitoring.
[19] See, for example, U.S. v. Scott, 450 F.3d 863 (9th Cir. 2005), available at https://casetext.com/case/us-v-scott-236; Doyle v. Cont'l Ins. Co., 94 U.S. 535, 542, 24 L.Ed. 148 (1876); and Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 837 (1987), available at https://tile.loc.gov/storage-services/service/ll/usrep/usrep483/usrep483825/usrep483825.pdf.
[20] 138 S. Ct. 2206 (2018), available at https://supreme.justia.com/cases/federal/us/585/16-402/.
[21] 461 U.S. 660 (1983), available at https://supreme.justia.com/cases/federal/us/461/660/.
[22] White v. State, 311 So.3d 1278 (Miss. App. 2021), available at https://law.justia.com/cases/mississippi/court-of-appeals/2021/2020-cp-00537-coa.html.
[23] Commonwealth v. Canadyan, 458 Mass. 574 (2010), available at http://masscases.com/cases/sjc/458/458mass574.html.
[24] See, for example, Robinson v. California, 370 U.S. 660 (1962), available at https://supreme.justia.com/cases/federal/us/370/660/, Manning v. Caldwell for City of Roanoke, 930 F.3d 264 (4th Cir. 2019), available at https://www.ca4.uscourts.gov/opinions/171320A.p.pdf, Martin v. Boise, 902 F.3d 1031 (9th Cir. 2018), available at http://content.delivra.com/etapcontent/NationalLawCenteronHomeles/Martin%20vs.%20Boise%202018.pdf.
[25] https://www.ada.gov/criminaljustice/.