Sam,[1] who I met last summer, was a teenager on probation. He sported an electronic monitor strapped around his ankle then, and he likely still does. Sam attended court monthly and during one of those appearances, the judge looked down at Sam, over his reading glasses, and told him, “I think you need to be on the monitor a bit longer.”

The monitor was assigned to Sam as a part of his post-adjudication bargain. The judge’s orders imposed house arrest, which required Sam’s family to supervise him nearly constantly, implemented a strict schedule for his comings and goings from the house, and required that he seek permission days before he deviate from that schedule, even for church or grocery shopping.[2] Sam had to keep it charged, so it could send constant signals to the juvenile probation department. Because of these constraints, Sam had grown increasingly depressed while on the monitor.

I later learned that the judge’s professed concern for Sam’s behavior justifies, in the juvenile context, an order to extend the monitoring. In general, for adults as well as youth, broad discretion to require electronic monitoring over a long period of time is becoming more common. While pre-trial incarceration and pre-trial electronic monitoring share the status of being assigned pre-adjudication, the monitoring that results from an alternative to incarceration or as a term of probation is imposed through the judge or probation department’s charge to “rehabilitate.” During adjudication, Sam had been offered a term incarceration or a package of alternatives, which included the monitor. His attorneys had no opportunity to challenge the monitor without rejecting the entire alternative option.

Only a small portion of the almost seven million people in the U.S. criminal legal system is on electronic monitoring, but those numbers are on the rise.[3] The increased prevalence raises two distinct issues affecting youth and adults.[4] Both were apparent in the exchange I witnessed. First, the judiciary can impose the use of monitors with relative ease even though its impact is deep and its effects are under-examined.[5] Second, electronic monitoring severely restricts one’s freedom of movement, ability to make a living, and how one lives one’s life, but is generally not considered “punishment” in a legal sense.[6]

Juvenile defense attorney and clinical instructor Kate Weisburd has written extensively on the topic:

“Because electronic monitoring is often imposed as an alternative to pretrial detention or as a term of probation, and because it does not look like traditional ‘punishment,’ it typically falls outside the scope of traditional discourses about procedural or substantive due process …. [M]onitoring is seen as rehabilitative, and thus is subject to almost no judicial oversight or scrutiny.”[7]

Although Weisburd’s research deals largely with juveniles in California, Professor Erin Murphy, of NYU School of Law, has studied electronic monitoring as applied to adults and concurs. She writes, “[V]irtually no legal constraints circumscribe the use of [incarceration’s] technological counterpart.”[8] The lived effects of monitoring suggest that jurisdictions around the nation should take this issue seriously, and resist the urge to view monitoring as rehabilitation. Nor should they view monitoring as merely a new term of probation. Instead, every jurisdiction should ask, “What rights belong to those in a ‘technological’ prison?”[9]

 

The best-laid plans: the youth system

 

Every state except New Hampshire has some form of juvenile electronic monitoring.[10] Unsurprisingly, electronic monitoring works regressively. That is, it creates a greater financial burden for families and youth of color and costs them time, energy, and freedom.[11] Yet the technology enters families’ lives on the basis of a rehabilitative measure. The research about its effectiveness is inconclusive, in no small part because few have tried to define effectiveness or attempt to measure it.[12] Its negative consequences are well documented, however.

First, youth and their families foot the bill for their own electronic monitoring.[13] Families must pay daily “rent” for use of the monitors by fulfilling stringent requirements, including having landlines installed and dedicating phone plans.[14] There are also “installation fee[s], a daily charge for equipment use, random urinalyses, breath analyses, and [the] cost of equipment damaged or not returned.”[15] An inability to pay may even result in incarceration.[16]

Second, the viability, feasibility, and wisdom of home detention, which usually accompanies electronic monitoring, depends entirely on the circumstances of a child’s home life.[17] Probation terms frequently require that a youth be supervised when home. This may not be feasible for families with one or more working adults. Some children’s homes are unsafe. Some homes are very small. Some are not places in which children can escape the behaviors that got them into initial trouble. Furthermore, teenagers, who must give notice 24 hours to seven days in advance for approval to go outside, may act badly particularly when they do not get exercise or have the chance to do activities they enjoy.[18] In general, the requirements of the monitor demand that families plan their lives far in advance, which is not always a feasible or under the control of the juveniles themselves.

Third, electronic monitoring broadens and deepens contact with law enforcement. Deepening results when “electronic monitoring subjects more youth to greater court control for longer, resulting in more opportunities for youth to be detained on probation violations or new charges related to electronic monitoring.”[19] Indeed, contact with probation officers is frequently more common when one is on an electronic monitor compared to traditional probation.[20] Widening happens when more youth are captured into surveillance in the first place, which is the result when electronic monitoring supplements traditional probation and parole.[21]

A new report, “Electronic Monitoring of Youth in the California Juvenile Justice System,” examines electronic monitoring practices of youth in California’s 58 counties. This is the first report to conduct a statewide survey of the electronic monitoring practices of all of its counties.[22] Amazingly, 51 of these counties utilize electronic monitoring for juveniles.[23] The report shows that for juveniles, electronic monitoring is commonly used as part of pre- or post-adjudication alternatives to incarceration. Furthermore, they are generally unstandardized and most burdensome on people who are cash poor and of color.[24] As Sam’s case illustrated, juvenile defense attorneys and advocates are usually effectively unable to oppose these conditions because they enter as an alternative to incarceration. Without this avenue for seeking judicial oversight, few challenge its use.

Diverse voices have called for electronic monitoring to be seen as a deprivation of liberty that should trigger greater concern for due process concerns and entitlements for persons under electronic surveillance.[25] Precisely because individual advocates are unable to challenge the use of monitors in individual cases, youth and adults need the public to raise these concerns.

 

A new captivity

 

Courts have found generally that electronic monitoring is not equivalent to punishment because it does not implicate liberty concerns.[26] Instead, the state relies on its regulatory power to derive the authority to order the monitoring.[27] Electronic monitoring is often offered, at least in name, as an alternative to incarceration, yet the liberty constraints of electronic monitoring are evident in the lived experiences of those on them.[28] One major study concluded, “When a juvenile wears an electronic monitoring device, he or she feels like a criminal and may start behaving as such.”[29]

This dilemma has led to a call for changes to the underlying assumptions about electronic monitoring. The scholar James Kilgore who studies electronic monitoring as a scholar at the University of Illinois believes EM should be the last resort as a form of community sanction since it is “extremely punitive.”[30]

“[C]ategorizing electronic monitoring as a form of incarceration means that its application in situations where a person has not even been criminally charged becomes totally inappropriate. This would eliminate the now frequent use of EM in certain juvenile or school truancy cases. Furthermore, since many immigration cases are civil rather than criminal matters, incarceration of many immigrants awaiting adjudication lands beyond the boundary.”[31]

When we understand a sanction as a punishment, the analytical corollary is an articulation of the limits of that punishment, i.e. an articulated protection of certain freedoms. The Constitution provides that when the state seeks to deprive someone of freedom or property, that person is owed due process.[32] The intrusion and incapacitation that electronic monitoring imposes are not the same as a physical jail and they are not the same as an explicit deprivation of property, but they are troubling, deeply consequential, and they are on the rise. Murphy has done excellent work on the legal underpinnings of this topic;[33] Kilgore, who spent a year on a monitor himself while on parole, has said that if electronic monitoring is to be used at all, he advocates for the overt recognition of the rights of those monitored.[34]

Those in physical prisons are guaranteed rights by the Eighth Amendment prohibition against cruel and unusual punishment.[35] Kilgore told me in an interview that he has reviewed hundreds of pieces of legislation and contracts and has “only ever seen one that makes a relatively useful list of things that people should be allowed to do, like laundry, shopping, get your driver’s license, pay rent, go to the bank, [or] go to the dentist. None of these are ever listed as something you have a right to do or that are listed as an entitlement.”[36] Kilgore proposes the “rights to seek and attend work, to access education and medical treatment, and to participate in community, family and religious activities.”[37]

These proposed rights cover some of the major issues facing families that I worked with last summer. Under Kilgore’s framework, a judge may have still been able to order Sam on a monitor under his power to adjudicate sentences, but Sam would have had protection against other life-altering issues. Sam’s mother and sister would have had a guarantee that they could attend appointments, go shopping, and go to church. Their lives would not have been burdened with an increase in Sam’s chances of falling afoul of the court over technical violations. Sam would have benefited from the right to live as normal a life as possible.

Electronic monitoring does not yet have an appropriate justification or oversight in the law. In addition, it is applied without a guaranteed set of rights for those on electronic monitors. These issues should be of deep concern for all 49 states that issue them to juveniles,[38] and all 50 who issue them to adults.[39]

 

 

[1] Client’s name has been changed to protect privacy.

[2] See generally Sklaver, Stacey L. 2010. “The Pros and Cons of Using Electronic Monitoring Programs in Juvenile Cases.” Juvenile Justice Committee Newsletter, No.5. Washington, D.C.: American Bar Association (“Although some electronic monitoring technology is intended to manage individuals’ behavior … tracking devices are used to monitor the movements or location of those being supervised. The two dominant forms of tracking devices use GPS and RF technology.”).

[3] Pew issue brief: Pew Charitable Trusts, Use of Electronic Offender-Tracking Devices Expands Sharply, 3 (2016), http://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2016/09/use-of-electronic-offender-tracking-devices-expands-sharply (“Nationally, nearly 7 million people were in prison or jail or on probation or parole at the end of 2014, individuals tracked using electronic devices in 2015 represented less than 2 percent of that total.”).

[4] See id.

[5] Id. at 12. See also Kate Weisburd, Monitoring Youth, 101 Iowa L. Rev. 297, 299 (2015) (noting that judges may keep youth on probation until the court determines they are rehabilitated). See also Robin Walker Sterling, Fundamental Unfairness: In re Gault and the Road Not Taken, 72 MD. L. REV. 607 (2013) (discussing the ways in which courts may employ rehabilitation to justify indefinite extensions of probation).

[6] Weisburd, Kate, Monitoring Youth, 101 Iowa L. Rev., 297, 304–05 (2015).

[7] Id. 

[8] Murphy, Erin. Paradigms of Restraint, 57 Duke L. J. 1321 (2008).

[9] Id.

[10] Samuelson Law, Technology & Public Policy Clinic, Electronic Monitoring of Youth in the California Juvenile Justice System (U.C. Berkeley School of Law, Berkeley, CA), 2017 at 2, referencing Kate Weisburd, Monitoring Youth, 101 Iowa L. Rev. 297, 299 (2015). In 2011, the American Bar Association urged governments to adopt electronic monitoring as an alternative to detention for eligible juvenile offenders. See Am. Bar Ass’n, Resolution 104D: Adopted by the House of Delegates (2011).

[11] Samuelson Law, supra note 11 at 3.

[12] See Pew, supra note 3.

[13] For adults, “in all states except Hawaii and the District of Columbia, there’s a fee for the electronic monitoring devices defendants and offenders are ordered to wear.” State by State Court Fees, National Public Radio, May 19, 2014, http://www.npr.org/2014/05/19/312455680/state-by-state-court-fees.

[14] See Sklaver, supra note 1.

[15] See Sklaver, supra note 1., at 3.

[16] Id.

[17] For a discussion of the federal position on home detention and electronic monitors, see Development Services Group, Inc., Home Confinement and Electronic Monitoring 1 (Office of Juvenile Justice and Delinquency Prevention, 2014), https://www.ojjdp.gov/mpg/litreviews/Home_Confinement_EM.pdf.

[18] Samuelson Law, Technology & Public Policy Clinic, Electronic Monitoring of Youth in the California Juvenile Justice System 4 (U.C. Berkeley School of Law, 2017).

[19] Weisburd, supra note 5, at 317–318.

[20] Id., referencing Austin, James F., Kelly Dedel Johnson, and Ronald John Weitzer, Alternatives to the Secure Detention and Confinement of Juvenile Offenders. Washington, D.C.: U.S. Department of Justice (2005) (“The level of monitoring by supervisors varies from case to case, but contacts are usually more frequent than regular probation.”).

[21] Weisburd, supra note 5, at 313 (“With respect to pretrial release, courts may impose electronic monitoring as an alternative to detention, and do so under their authority to detain,” or as a condition of probation.)

[22] Samuelson Law, Technology & Public Policy Clinic, Electronic Monitoring of Youth in the California Juvenile Justice System 2 (U.C. Berkeley School of Law, 2017).

[22] Id.

[23] Id. at 4.

[24] Id. at 3.

[25] See Murphy, supra note 9, at 1328.

[26] See id. at 1349–50. (Applying the test to determine punitive from regulatory mechanisms, named for the Kennedy v. Mendoza-Martinez case, the Supreme Court looked to the “affirmative disability or restraint” factor and observed that the act in question “imposes no physical restraint, and so does not resemble the punishment of imprisonment…. “[M]inor and indirect” restraints are “unlikely to be punitive.” (Quoting Mendoza-Martinez, 372 U.S. at 168–69 (footnotes omitted)).

[27] Sklaver, supra note 1, at 3.

[28] Weisburd, supra note 5, at 313.

[29] Sklaver, supra note 1, at 3.

[30] Telephone interview with James Kilgore, Research Scholar, Center for African Studies, University of Illinois (Oct. 9, 2017).

[31] Kilgore, James. Electronic Monitoring is Not the Answer, 15 (Urbana-Champaign Independent Media Center 2015), http://centerformediajustice.org/wp-content/uploads/sites/80/2015/10/EM-Report-Kilgore-final-draft-10-4-15.pdf.

[32] See U.S. Const. amend. XIV, § 1.; see also Matthews v. Eldridge, 424 U.S. 319 (1976).

[33] See Murphy, supra note 9.

[34] Kilgore, supra note 30.

[35] See, e.g., Substantive Rights Retained by Prisoners, 43 Geo. L.J. Ann. Rev. Crim. Proc. 1061, 1071 (2014), Margo Schlanger, Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics, 48 Harv. C.R.-C.L. L. Rev. 165, 172 (2013).

[36] Kilgore, supra note 30.

[37] Kilgore, supra note 31, at 1.

[38] Samuelson Law, supra note 11.

[39] Pew, supra note 3, at 1.