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Electronic Monitoring Has Widened Its Net Amid COVID

The merging of location tracking and biometrics has increased the potential for criminalization through technology.

Faustina Alvarado Garcia sits next to her daughter Madelin Souza Alvarado, 11, as she adjusts her ankle monitor in the community room at Hamilton shelter in San Francisco, California, on June 18, 2019. Her ankle monitor was put on her by Immigration and Customs Enforcement and has been causing her pain.

For Mohawk Johnson, the next call from the Cook County Sheriff’s department may come at any time. It could be at 4 a.m. or smack in the middle of dinner. Over the course of a year on house arrest on a GPS monitor, Johnson estimates the sheriff’s department has called more than 60 times accusing him of being AWOL when he is asleep in his bed, watching television or taking a shower. As a self-defense mechanism, Johnson has posted videos of many of these calls to his

Twitter account showing himself crawling out from under the blankets to answer the phone or trying to relax in front of Captain America on the TV screen as the call arrives. Johnson’s tweets, along with high-profile cases like those of activist lawyer Steven Donziger and Baltimore grandmother Gwen Levi, have given the punitive vagaries of electronic monitoring (EM) a touch of media play.

But until recently, researchers have not stepped forward to provide data to substantiate stories like Johnson’s and provide fuel for activist campaigns against EM. The lack of data about electronic monitoring is shocking. To begin with, no national census of monitors exists. While prisons and jails produce population counts regularly, the last attempt at a national tally of electronic monitors was a 2016 census by Pew Charitable Trusts which concluded that 131,000 devices were in use, excluding those used by Immigration and Customs Enforcement (ICE). Yet Pew’s total seems questionable, since a 2009 report by the late EM expert Peggy Conway placed the total number of monitors at nearly 200,000. State and local authorities shed little additional light. Most keep no serious records of who is on the monitor, how often people are returned to custody due to violating the frequently irrational rules of EM or how many false alarms trigger undue arrests or harassment. Even basic annual reports or assessments are rare. The major companies that provide the devices and often run the programs — BI, Satellite Tracking of People (STOP), Sentinel, Attenti and SuperCom — are also notoriously secretive about their data. While knowledge of the harms done by these technologies to individuals like Johnson and Donziger has become well known, the normalization of GPS trackers in smartphones, fitness devices that record biometrics and the addition of Amazon Ring to millions of front doors have softened popular concerns about the impact of carceral technologies like GPS ankle monitors.

New Research

However, in the past three years, activist-researchers have begun to apply a critical lens to electronic monitoring. Three factors have precipitated this shift. First, the rise of the movement to end cash bail often prompted authorities to release people on monitors. Impacted individuals and many activists quickly realized release did not always equate with freedom. Under EM, people often landed back in jail for violating some petty rule. Alternatively, regulations like those applied to Mohawk Johnson frequently subjected them to extreme regimes of confinement in their own homes. As Timothy Williams, who spent several months on a pretrial monitor in Chicago put it, electronic monitoring is “hell … the same as jail. There’s no difference.” Second, ICE has steadily increased the use of GPS tracking and other surveillance devices on immigrants. Lastly, during the pandemic, popular pressure to release individuals from the pressure cookers of carceral spaces prompted a turn to releases on monitors. As David Gaspar, The Bail Project’s national director of operations noted to Truthout, “It has become ridiculous how quick they are to hand out what has become their go-to piece of jewelry.” Since March 2020, the Federal Bureau of Prisons alone has granted early release to over 30,000 people, thousands of whom landed on house arrest with an ankle monitor.

Researchers like Ruha Benjamin, author of the prize-winning Race After Technology, George Washington University law professor Kate Weisburd, Chaz Arnett, Ali Panjwani and Puck Lo, as well as organizations like Mijente, Just Futures Law, Shriver Center on Poverty Law, Chicago Appleseed Center for Fair Courts, and the Community Justice Exchange have led important efforts to unearth the details of electronic monitoring. All told, the results of this new wave of research are providing the kind of data needed to fuel campaigns to block expanded use of electronic monitoring and other punitive technologies, often referred to as “e-carceration.”

At least three studies are surfacing previously unknown details about both the policy and operations of electronic monitoring and the overall industry. “Electronic Prisons: The Operation of Ankle Monitoring in the Criminal Legal System,” released by George Washington University (GWU) Law School in late September, constitutes the most comprehensive examination yet of EM policies and laws. In this study, a team led by Kate Weisburd collected and analyzed 247 records from 101 agencies in 44 states and the District of Columbia. Their scope included pretrial and post-prison EM, as well as juvenile applications of monitors. Weisburd, who in her courtroom days defended dozens of youths placed on electronic monitors, told Truthout she aims to add “to the efforts of community organizers and advocates who are pushing back against the expansion of e-carceration.” The GWU work depicts “how monitoring is used, including the terms and conditions that people on monitors must abide by.” Weisburd said their project documents “the restrictive nature of monitoring that, like prison, infringes, if not eliminates, fundamental rights and undermines privacy, financial security, autonomy and dignity.” Some of the restrictions the team unearthed were staggering. In Kanawha County, West Virginia, for example, authorities compel a person on EM to agree that: “I will not allow persons of disreputable character to visit my residence during the period of home confinement.” In Cuyahoga County, Ohio, those on monitors are compelled to conduct themselves in “an orderly manner at all times.” No definition of “disreputable” or “orderly manner” are offered.

The Louisville Metro court specifies that a person under “home incarceration” must remain inside the house proper. For those authorities, “inside means no decks, patios, porches, taking out the trash, etc.” In Milwaukee, individuals are only allowed to go to the grocery store for one hour per week.

The language of the rules is often as punitive as their content. The Florida Department of Corrections informs people under their program: “You will charge the tracking device for a minimum of four (4) hours a day and at all times while at home unless otherwise directed.” In Kansas, a person is banned from sleeping while charging their device.

Privacy is another key issue. In San Francisco, people on monitors must “acknowledge that my EM data may be shared with other criminal justice partners.” No specific partners are mentioned. Six agencies actually require people on EM to submit to warrantless searches of their cellphones and other devices. The report also notes how devices are increasingly adding on features like two-way audio, meaning that the person’s ankle can operate like a speaker phone, “talking” loudly to the person on the device at any moment chosen by law enforcement. This creates a fear on the part of the user that the device may start “talking” while a person is at work or in other places where such an interruption would be problematic.

Weisburd’s team also compiled a detailed list of the daily user fees for many of the jurisdictions. These charges, simply for being on the monitor, range from $1.50 per day in Lancaster County, Nebraska, to $47 per day for a self-employed person in Sacramento County, California. The charges in Sacramento would add up to over $17,000 per year, more than half the earnings of a person on minimum wage.

While the GWU study provided a broad overview, the Chicago Appleseed Center for Fair Courts produced the most detailed case study of an EM program to date: 10 Facts About Pretrial Electronic Monitoring in Cook County. Focusing on what is the largest and likely the most punitive pretrial electronic monitoring program in the country, this research aimed to refute arguments advanced by Cook County Sheriff Tom Dart that people on pretrial release on electronic monitors were contributing to heightened violence in Chicago. Appleseed Senior Policy Analyst Sarah Staudt, who led this research project, systematically refuted Dart’s allegations. In the kind of deep-dive research previously unseen in the world of electronic monitoring, Staudt exposed how the Cook County EM program has been dramatically expanding since the pandemic, that people are being kept on house arrest for longer periods than ever, and like every aspect of the criminal legal system, EM disproportionately impacts Black people. While Black people only comprise 23 percent of the county’s population, they constitute 74 percent of those on electronic monitoring.

The Appleseed document totally undermines Dart’s contentions that EM and pretrial justice reform are linked to violence. Contrary to Dart’s allegations, which are not supported by data, Staudt’s calculations show only 1 person in 12 on electronic monitoring is arrested on new charges. While the number of charges for acts of violence committed by people on a monitor has not grown, the figures for people sent back to jail for minor violations of monitoring rules has. Reincarceration for acts like failing to charge a battery, returning home late from work or not having a place to live more than quadrupled from 2019 to 2021. Moreover, people are spending longer periods on pretrial monitoring. At the time of the Appleseed research, over 1,000 people had been on EM for over a year, proving that Mohawk Johnson is not an exception. Lastly, the report debunked one of the major motivations for pretrial EM, ensuring attendance at court appearances. A survey of Cook County EM from 2016-2018 showed virtually equal rates of appearance for all court appointments, for those on a monitor (83.52 percent) and those not on a monitor (82.75 percent). The study concluded that EM has “no clear benefit to the public” and at an annual cost of over $30 million, represents a drain from funding streams that could “prioritize investments in grassroots, non-court-related services to support people involved in the criminal legal system.”

While research in the criminal legal system has opened up lots of new territory, equally important advances in unearthing the complexities of electronic monitoring have come from immigrant rights activists. A collaboration among Freedom for Immigrants, Immigrant Defense Project and the Benjamin N. Cardozo School of Law surveyed the harms of EM for people under the authority of ICE. In perhaps the first serious look at the health implications of being on EM, their report found that more than 70 percent of the 147 respondents reported “aches, pains and cramps,” 55 percent reported numbness and roughly 1 in 5 said they had received electric shocks from the device. These findings raised possibilities for further study and even litigation concerning the health effects of ankle shackles, an aspect of EM that has been ignored by authorities and providers for decades. This work has melded with studies of the role of Big Tech in immigration carried out by a collaboration involving Mijente, Just Futures Law, Immigrant Defense Project and the National Immigration Project.

EM and State Struggles

The expansion of EM research coincides with intense struggles in state legislatures over pretrial reform where electronic monitoring has become an important contestation point. These fights demonstrate a growing understanding that electronic monitoring, like cash bail, cannot be attacked with a single-issue focus. Pilar Weiss, the director of the Community Justice Exchange, a network that organizes over 100 community bail funds, argues that framing is critical. She stresses that letting people out of jail without payment of bail opened the door to a range of post-detention conditions of which EM was one of the most common and likely the most restrictive. She reminded Truthout that “the problem is not with the person but with the system.”

In at least three states, activists made serious interventions to block the use of electronic monitoring as part of legislative reform. In New York, blockage of EM came via banning the introduction of private companies or fees in monitoring programs. This forced jurisdictions to assume operational and financial responsibility for EM, a burden most authorities weren’t willing to cover. In the words of Katie Schaffer, who was active in the legislative campaign as director of advocacy and organizing for the Center for Community Alternatives, the bill made EM “functionally not an option.”

In Illinois, sparked by the work of the statewide Coalition to End Money Bond, the legislature took a different path, passing the Illinois Pretrial Fairness Act (PFA), the first legislation in the country to ban cash bail. While the activist critique of EM was not enough to convince the legislature to totally ban electronic monitoring, the PFA ultimately called for mandatory court hearings to place a person on EM, coupled with a compulsory review of the electronic monitor’s continued use after 60 days. As Sharlyn Grace, a past leader of the Coalition recently wrote, the reforms “take away some power and prevent harmful practices from continuing unchecked.”

The California process was more complicated and remains unresolved. After many years of battling over pretrial reform, authorities advanced Proposition 25 to the November 2020 ballot. The proposition aimed to enact SB10, a bill which would have ended cash bail via intensive use of racially biased risk assessment tools and expansion of harsh conditions of release like EM. While mainstream Democrats and some progressives supported Prop 25, the ACLU, Human Rights Watch, Californians United for a Responsible Budget, and a broad spectrum of abolitionists and radical reformers campaigned against Prop 25. Predictably, the bail bond industry also opposed the measure because it would have nullified most of their revenue stream. In the end, 55 percent of voters opposed the referendum. Activists hoped this would bring the use of risk assessment-based reform to a halt and provide space for community-driven initiatives based on participatory defense and transformative justice. These approaches mobilize families and communities to contest individual cases as well as push to change the underlying structures that continue to propel Black, Latinx, Indigenous, and other marginalized folks into the system. But in the spring of this year, Gov. Gavin Newsom stepped in and allocated $140 million to place pretrial services statewide under the authority of the Department of Probation, effectively sidelining community-led efforts. This move will doubtless lead to the expansion of electronic monitoring. As campaigner Ivette Ale told Truthout, “Probation loves EM.” In their capacity as a leading member of the CARE First Coalition, which aims to derail Newsom’s moves, Ale told Truthout the organizing strategy is to build grassroots structures in each of the state’s 58 counties. “We only win by mobilizing more people than anybody,” Ale emphasized.

Grassroots efforts have scored many victories in the fight against mass incarceration’s numerous fronts. But perhaps pushing back against technology also requires some additional strategies. Puck Lo, research coordinator at Community Justice Exchange, contends, “We need to go someplace we haven’t been before and to do that we need to think differently.” In the realm of surveillance technology, Lo views the merging of location tracking and biometrics as creating more potential for the criminalization of individuals through the use of technology. She maintains this may direct us to needing to find ways to “erase databases rather than control them.” But whether the aim is controlling the technology or erasing it, the key rests with building popular support for measures to undermine the power of Big Tech, EM companies and elected officials like Newsom and Sheriff Tom Dart who provide finance and political cover for widening the net of e-carceration.

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