by Michael Dean Thompson

The U.S. has a dark carceral history that has led to its maintenance of one of the highest incarceration rates in the world. Advocates for electronic monitoring (“EM”) have often made the claim that it could reduce incarceration rates and their associated financial and human costs. But neither has happened. In the words of one Portland, Oregon, county commissioner, “It’s a system that is less restrictive than physical prisons, but ultimately can perpetuate the obstacles to freedom and injustice created by our systems of prosecution and punishment.” Those obstacles and continued injustice make EM just another form of incarceration, one that often shifts the costs of carceral control onto the people being monitored.

In addition, EM expands the carceral style of control so that it is often far more restrictive than traditional bonds, probation, and parole while not providing any significant gains in court appearance rates or reductions in new arrests. Meanwhile, EM increases the chances that the monitored persons might be incarcerated due to issues like simply forgetting to charge the device’s batteries, failing to pay EM-related fees, or engaging in behavior that the supervising officer of the often privately monitored systems finds problematic. Nevertheless, the use of EM continues to see explosive growth. New research from the Vera Institute of Justice helps us to understand just how extraordinary and oppressive EM usage has become.

EM Usage

The explosive growth of electronic monitoring has recently accompanied a modest reduction in incarceration rates. However, the lower incarceration and higher electronic monitoring rates are poorly correlated. Much of the growth of EM took place prior to Covid and its associated reduction in incarceration as institutions attempted to adjust to the demands of the pandemic.

After the 2008 financial crisis, there had been a national trend to stop building new prisons and reduce the number of prisoners even as some states, smaller cities, and rural areas continued to build new jails, which resulted in a higher national jail capacity. By 2019, there were 2.1 million people incarcerated in the U.S. That number plummeted as a result of Covid to 1.8 million in 2022, with the average state prison population down by 25%. These numbers, however, were skewed by states like New York and New Jersey, which saw incarceration rates fall 57 and 59 percent respectively. Likewise, California, Illinois, Maryland, Massachusetts, Michigan, and West Virginia were down 33% or more during the same period.

Civil detention by Immigration and Customs Enforcement (“ICE”) saw a significant decline in the wake of Covid. Much of the decline came from a combination of factors. First, some jurisdictions resisted new ICE contracts for jail and detention space. In addition, changes to immigration policy and enforcement priorities furthered the reduction so that ICE saw the number of civil detentions fall from 55,238 in August of 2019 to 15,289 in April 2021. Nevertheless, civil detentions have jumped back up to about 35,000 people in September of 2023. While the September 2023 number remains 20,00 fewer than the August 2019 count, it highlights a disturbing return to an upward trend.

Going a little further back than the financial crisis to 2005 shrinks the reduction in incarceration to just 15% against 2021. Yet, the same period saw an almost five times increase in the number of people subjected to EM. By the next year, the number of monitored persons grew to nearly 10 times that of the 2005 count. Between the growth of EM and the national reduction in incarceration, there was a significant change in the ratio of people under EM and those incarcerated. In 2005, there was one person on EM for every 43 people incarcerated while in 2021 there was one EM for every eight people incarcerated.

The civil detention numbers are somewhat more shocking for roughly the same period. While in 2005 there were roughly 19,700 people in civil detention and about 13,000 on EM, the ratio flipped by November 2022 so that there were 340,000 people on EM and just about 30,000 civil detentions. Just from 2015 to 2022, ICE saw a growth in the average daily population (the average number of persons monitored each day as opposed to the total number of persons monitored in a given period) of more than 1,260% (nearly 13x) on its Intensive Supervision Appearance Program (“ISAP”).

Some cities such as Austin, Texas, benefited from the adoption of EM. Between 2020 and 2021, Austin reduced its jail population by 14% (-245 people) as it increased the number of EM users by 32% (+189 people), resulting in a net reduction in carcerally impacted persons. Yet, at the same time Detroit, Michigan, grew its EM population by 41% (+510 people) and its jail population by 60% (+446 people). Likewise, both San Francisco and Houston saw their jail population grow after they adopted EM. Dyer County, Tennessee, has even managed to have a higher EM usage and incarceration rate than the national average at 142 and 881 per 100,000 citizens, respectively.

EM and Race

After the killings of George Floyd and Breonna Taylor, the Multnomah County Department of Community Justice conducted a review of its own electronic monitoring usage. It found that its EM usage had a much greater impact on BIPOC communities. While Black people make up only 6% of the local population, they represent an astonishing 36% of the people on EM. This number even surpassed the already disproportionate 21% that Black persons made up in the area’s jails.

In the wake of the results, one county commissioner said, “It’s a system that is less restrictive than physical prisons, but ultimately can perpetuate the obstacles to freedom and the injustice created by our systems of prosecution and punishment.” During the pandemic, the Portland district attorney decreased the number of arrests while also allowing for more early and pretrial releases. Portland also capped the number of new daily assignments to just nine devices, halving the single day population from 106 people in the middle of 2019 to just 47 a year later. During the review, Portland recognized that “electronic monitoring generally has few rehabilitative benefits.” Vera points out that studies of EM usage have not been able to find support for EM’s purported benefits of making society safer and promoting rehabilitation, nor has it managed to reduce the number of people who fail to appear in court.

Chicago is one of the most segregated cities in the U.S. As such, it makes sense that EM would have an even more dramatic disparity in its application to Black people. Black people made up approximately 23% of Chicago’s population in 2021 yet were an incredible 74% of the EM population. A similar dynamic occurred in Detroit, where Black people were overrepresented both in jail and EM during the period from 2018 to 2019. Meanwhile, throughout the U.S., BIPOC people were more likely to see more EM restrictions than White people.

The Injurious and Punitive Nature of EM

Advocates often compare the apparent liberty of electronic monitoring to the oppression of incarceration. If it were EM driving decarceration, the comparison might be apt. Unfortunately, however, EM is at best a reaction to decarceration rather than an impetus. A more apt comparison then would be to more traditional approaches of parole, probation, bonds, etc. In those cases, EM tends to be remarkably restrictive. People who have been subjected to EM have reported that it has created barriers to employment as it also impacts their financial security. Having to pay as much as $900 per month in some extreme cases while also struggling with under/unemployment furthers the negative correlation between those burdened with EM and their self-perception and personal relationships.

EM additionally burdens its participants through vague and overlapping rules. It challenges them with otherwise mundane tasks, like attending religious services, dropping the kids off at school and related activities, or even grocery shopping. People released to EM often must also consent to frequent and warrantless searches of their home. One survey of 150 people supervised with an ankle monitor had 88% of the subjects reporting adverse psychological effects of the EM. Some of those effects were anxiety, depression, sleep disruptions, and social isolation. That is hardly surprising given the limited movement, onerous reporting requirements, and its impact on daily relationships. In addition, 90% of survey participants reported pain or discomfort. One in five reported experiencing electric shocks. Rather than providing freedom, EM is just another minefield where people will find themselves returning to incarcerating.

Pitfalls of EM

Electronic monitoring is not just a challenge for the people being monitored. There are challenges for any agency wishing to implement EM. The devices are often unreliable and expensive. The costs are largely a result of the agency needing to respond to a much greater number of potential violations and to fit the devices on the person being monitored. Furthermore, the devices tend to be prohibitively expensive for the agencies to either rent or purchase. It is for that reason many localities are offloading some or all of the costs onto the people being monitored—further burdening them on an already perilous journey to freedom.

Monitored people can also find themselves subjected to potential reincarceration due to unreliable devices and infrastructure. A Chicago man documented on video dozens of false alarms by his ankle monitor. In fact, a 2021 analysis of electronic monitors found more than 80% of alerts to be false alarms. According to the American Civil Liberties Union, “device malfunctions such as audio defects, faulty batteries, and/or inability to connect to WiFi” are common tripwires to return people to jail or prison. They also documented a man who went to prison simply because his monitor would not stay charged. These challenges are exacerbated in rural areas, where poor internet services, infrequent cell towers, and other infrastructure issues make tracking GPS locations much more difficult.

Key Themes

The Vera Institute of Justice identified four key themes associated with the administration of electronic monitoring: (1) There is a patchwork of judicial authority derived from the wide range of local and state agencies involved in EM, (2) EM is unregulated and much of its inner functionality is hidden in the privatized sector, (3) users usually pay large portions of the fees, and (4) constant technological changes are leading to rapid growth and evolution of the technology. These factors create serious challenges for establishing anything that even approaches a just and equitable system.

The patchwork of agencies involved can include the courts, pretrial services, probation or parole departments, and jails or detention centers. In some cases, neighboring counties can be asked to administer the EM of another county. Arrangements such as these can lead to a labyrinth of contracting and subcontracting agencies. Some state agencies have contracted out supervision to community corrections facilities, which in turn have contracted with private vendors. The net effect of the patchwork is that it limits the accountability of elected and public officials while increasing the difficulties for those being monitored.

The lack of regulation combined with the privatized services further limits any accountability. Researchers have found that there are a large number of EM vendors that exist only on the local, smaller scales and with little oversight. This has been assisted by the rapid expansion of independent, for-profit EM, probation, and other community supervision services.

One former Ohio community counseling center found a new life as a community corrections facility, which it evolved into becoming the dominant provider of EM in the state. Vera likewise found “numerous counties [where] the dominant provider was extremely small and, in some cases, it was a one-person operation—a sole proprietorship started by a former law enforcement or corrections officer.” In Florida, a statewide provider has offices in each county and runs them as cheaply as possible. These arrangements have enabled corruption, as in the case of the New Orleans judge who sent people specifically to a campaign contributor’s company and threatened them if they did not pay their fees. 

The privatization and distribution across a variety of agencies allows for much of the real costs of electronic monitoring to be hidden. The example of ICE’s ISAP illustrates how extreme the costs can be for even low risk monitoring. When the program began in 2004, ISAP had a budget of $3 million. That exploded to $530 million in 2023, which was itself a greater than 16% budget increase over the previous year. The ISAP program, however, is not as intensive—and, therefore, costly—as many other programs in the U.S.

In contrast to ICE, the user fees in many regions serve to fund the very systems being used to surveil the user. That shift of the burden, effectively forcing the prisoner to pay for a virtual prison, becomes an “inequitable form of taxation” on primarily low-income individuals according to the Fines and Fees Justice Center. An IoT Business News article predicted in 2020 that the EM market would grow to nearly $1.3 billion for 2023 in North America, an incredible portion of which is extracted from the people who already suffer substantial financial and social barriers as a result of their involvement with the criminal justice and/or immigration systems.

The first electronic monitors were simple RF devices that limited a person’s movement to a small area at specific times. The devices sent a signal to another box attached to a phone line, paid for by the user in addition to the monitor, that allowed the monitoring supervisor to know if the user was in their home. Since then, the tech has seen significant change. While there are some RF users still around, GPS-enabled monitors grew substantially between 2005-2015 to 88,172 devices compared to the 37,706 RF devices in 2015.

Newer systems are now displacing GPS systems. These new systems expand carceral control to the lowest risk users who may not actually need tracking at all. As an example, ICE used BI’s SmartLINK tool in 2022 to monitor 265,832 people compared to just over 52,000 immigrants being tracked via GPS. SmartLINK users are required to check in with case managers using geotagged selfies (photos of themselves with their location embedded). For a similar class of people whom the Virginia Department of Corrections (“VADOC”) classifies as a risk to public safety, VADOC has begun employing Track Group’s ShadowTrack at a cost of $1.3 million for just 16,000 people. ShadowTrack uses biometrics, such as voice and facial recognition, along with a questionnaire to automate the caseload and remove face-to-face meetings.

EM evolution has led to substantial privacy concerns. A study of 16 EM cellphone apps found that one app required its users to submit to five random breathalyzer tests daily. That number would be unachievable had it not been enabled by the app and seems to be a callous disregard of whatever social situation the participant may be in at the moment of submission. Meanwhile, an immigrant rights coalition found that ICE was storing large amounts of data from its ISAP participants—including biometrics, court records, license plate numbers, and Social Security Numbers—for up to 75 years. And, as the EM apps continue to evolve into ever more invasive phone-based apps, users must be concerned about how much of their data is being collected and sold to data brokers to be included in the rapidly growing market for personally identifiable information.

Conclusion

The electronic monitoring market’s lack of consistent regulation and overlapping authorities allow the people being surveilled to be subjected to varying degrees of social and financial oppression with few checks and balances. EM users often find the devices serve only to add to their challenges with housing, employment, and family as they further relinquish any sense of privacy they previously entertained. Rather than addressing the positive needs of their clients, electronic monitors serve only to further the punitive aspects of the carceral system at extreme costs to society.   

Sources: Vera.org, EFF.org

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