The First Step Act Opens the Door to Digital Incarceration

The recent debates over the First Step Act and California’s SB-10 — two bills that attempt to address the overuse of incarceration in the US — have thrown the complexities of “criminal justice system reform” into the spotlight. Most attention has focused on sentencing reform and ending cash bail. But the struggles over these bills have brought another issue front and center that will be extremely critical in the long run: electronic monitoring. Both these laws, if enacted, (and many more to come) would precipitate a much wider use of e-carceration — the deprivation of liberty by means of technologies such as ankle monitors.

I have campaigned against the use of electronic monitors for many years, after spending a year on one myself. Fortunately, an increasing number of people are reaching the obvious conclusion: Electronic monitoring is not an alternative to incarceration but an alternative form of incarceration. With the monitor, our homes become our jails; our loved ones become our jailers. While this is an important realization, we need to dig deeper in responding to electronic monitors. As much as some of us may want them to go away, they are here and are going to be with us for a good while.

The United States has about 200,000 people on these devices right now with the numbers, especially among immigrants, steadily rising. Even the hinterlands are busting out e-shackles. Indianapolis seems to lead the nation’s cities in electronic monitoring with more than 4,000 people forced to wear ankle monitors. Those of us who oppose mass incarceration, especially if we adopt an abolitionist perspective, must respond to ankle monitors like we respond to prisons. Abolitionists oppose adding more prisons, push for people to be freed from them and try to close them down. When we can’t do any of that, we fight to reduce the harm by opposing torturous practices like solitary confinement, mandatory minimums and shackling mothers who are giving birth. To similarly oppose electronic monitors — which many activists call “digital prisons” — we must oppose new shackles, try to reduce the number in operation and reduce the harm being done by monitors.

But what exactly does it mean to reduce the harm done by electronic monitors? On one level, the two most egregious harms done by electronic monitors are restriction of movement and imposition of user fees. Strict regimes of house arrest associated with electronic monitoring replicate the confinement of prison and can block people from employment, family activities, medical care and practicing their religion. While the stipulations of the First Step Act make some provisions allowing movement for specific purposes, without a major ideological transformation in the federal Bureau of Prisons, these are likely to remain empty promises.

User fees are equally problematic. Some people pay up to $35 a day to be monitored. A recent lawsuit brought by four plaintiffs in California asserts that monitoring fees totally disrupted their lives, costing them their homes, their cars and jeopardizing their health. Moreover, the debt from fees can lead individuals who are on pretrial electronic monitoring to accepting an undesirable plea bargain just to get off the e-shackle and be freed from payments. Both the First Step Act and SB-10 open the door to profiteering from monitors.

Lastly, we need to bear in mind that more than 70 percent of electronic monitors today are GPS-enabled. A GPS monitor is not simply a device for enforcing criminal legal sanctions; it tracks a person’s location and stores that information on a cloud somewhere. In most cases, there is little or no oversight as to what happens to that data. This represents a technological continuation of the tracking of the movements of enslaved Black and Indigenous people that formed an essential component of settler colonialism. The data points of a GPS map are the modern equivalent of “lanterns laws” that forced Black and Indigenous people in New York to carry candles if they travelled after dark — only the lights of data points never really go out.

Mass Incarceration Meets the Surveillance State

In the contemporary moment, electronic monitors form the point of convergence between mass incarceration and the surveillance state. E-shackles not only act like an e-cage but also mimic a team of spies following people around, checking out where they go and who they hang out with, and noting all their personal habits. If they are undocumented or suspected of being “gang members,” shackles link them to their “partners in crime.”

The tracking data from GPS monitors blends in with all the other databases that profile and punish the criminalized sectors of the population — poor people who are disproportionately Black and Brown. As Virginia Eubanks stresses, these databases are part of “automating inequality.”

Moreover, this technology is not static. Devices in the near future could record far more data and information than I could ever have dreamed of nine years ago when they first put the shackle around my ankle. Even now, some devices can give you a robocall if you move out of your permitted zones of travel, can send you a reminder of your appointment with your parole officer or keep track of all your digital communications and your online friends from Facebook and other platforms. The ankle bands are slowly disappearing, to be replaced by a techno hybrid of the smartphone and the Fitbit. The result will likely be a powerful piece of personalized spyware that could one day morph into a chip implant. Regardless of technological form, the monitors of tomorrow will be one-stop shops, offering a menu of punishments, alongside services like resource lists and health tips, perhaps while noting a person’s heart rate, blood potassium levels and checking their kidney function. How will criminal justice reform legislation address this form of e-carceration?

Furthermore, future iterations of electronic monitors hold the potential to impose geofences on the same communities that have been the targets of mass incarceration. This technology can reduce the need for brick-and-mortar prisons, use algorithms and metadata to determine the risk level of letting people mosey out of their assigned areas and charge “users” for the privilege of being surveilled. In a recent New York Times op-ed, Michelle Alexander referred to electronic monitors and other forms of e-carceration as the “Newest Jim Crow.”

Ultimately, when we push back against electronic monitors, we are not only resisting incarceration but also fighting back against a racialized surveillance state. We need to resist laws that deepen incarceration, but we also need to think carefully about what incarceration and freedom will look like in the future.