We Need a New Paradigm to Halt the Unprecedented Growth of Electronic Monitoring

After more than four decades in the shadows, electronic monitors have captured the hearts and minds of law enforcement. In Harris County, Texas, the ranks of those being tracked with electronic devices while awaiting trial skyrocketed from 27 people in 2019 to nearly 4,000 in 2021. Authorities from Immigration and Customs Enforcement (ICE) increased the number of migrants tracked nationally by the SmartLINK cellphone app from over 86,000 in December 2020 to more than 247,000 in September of this year. And in an unprecedented move, the Federal Bureau of Prisons (BOP) released 46,000 people to home confinement from March 2020 to July 2022, most of them forced to wear electronic monitors.

The pandemic contributed to this growth, making the prospect of escaping prison and jail cells through electronic monitoring (EM) an attractive option. But as abolitionist critics have consistently maintained, EM is not a more gentle, humane “alternative” to imprisonment, but rather a form of incarceration that is rapidly expanding in numbers and in its capacity to capture data. To challenge and ultimately abolish this punitive technology, we need a new paradigm to anchor our understanding of EM and all forms of e-carceration. Five key components frame this new paradigm.

First, we must demand more data and information. The annual census collected by the Bureau of Justice Statistics on incarcerated populations has proven essential to addressing mass incarceration, especially in unearthing the racist impact of the prison-industrial complex. In an era where data acts as currency, we have no national census on electronic monitoring operations. In fact, only a handful of the nations more than 2,000 county and state EM programs have produced a single report or evaluation. The vast majority dont even make basic stats public. They provide no racial breakdown of those being monitored, and no counts of people reincarcerated for violating EM rules. Nor do they offer any analyses of the impact of these devices on the monitored population. The major companies in the sector — BI, Satellite Tracking of People, Attenti and Sentinel — do no better. Their public media statements consist of puff pieces and praise poems for the technology. The sole state legislation requiring strict reporting by a government agency, Illinois’s 2019 HB0386, remains unenforced. In the absence of political pressure, the Illinois Prisoner Review Board, which is responsible for reporting, has failed to deliver a single piece of the mandated data. Perhaps the recently passed California bill AB 2658, which calls for EM reports on juvenile monitoring, will deliver more results.

Second, we need to recognize that electronic monitors are no longer simply ankle bands that track a persons location. They are an integral part of the surveillance state. Data captured by EM becomes a tool of criminalization and punishment, stored on clouds owned by Amazon and Microsoft, and used to block people’s access to employment, housing, education and successful outcomes in immigration courts. A recent paper by Kentrell Owens and a team of researchers from the University of Washington revealed how new generation, smartphone-based monitors expand the intrusive reach of EM by incorporating face and voice recognition log-ons. The current large-scale shift from ankle monitors to cellphone-based apps may eliminate the visual stigma of a plastic shackle but opens the door to accessing all the data on an individual’s phone with no clear guidelines as to how it is used or with whom it is shared. As Hamid Khan, an activist with the Stop LAPD Spying Coalition, told Truthout, such data can become a critical tool of harm.” In the post-Roe era, Khans concerns bear scrutiny as location tracking can become a key vehicle for prosecuting individuals seeking abortions and those who assist them.

Third, we need to place electronic monitoring and surveillance in historical context. Activist researcher Sarah T. Hamid notes that admiration of these technologies as new” and innovative” is off the mark. As she told Truthout, acquiring data from oppressed people has a long, problematic history. From the calculation of how much water to pack on slave trading ships to the science” of apartheid decision makers who determined a persons racial category by observing if a pencil would stick in their hair, measurement and calibration have been central to systems of oppression. As Yeshimabeit Milner of Data for Black Lives reminds us, we need data but we must engage it with an awareness of how it represents the product of a series of choices by those empowered to set the research agenda and conduct the studies — and on how those choices impact the outcome.”

Fourth, though often overstressed by EM critics, electronic monitoring has severe effects on individuals in the many jurisdictions where user fees and other charges are exacted. Some local jurisdictions have banned EM fees, but California is the only state to do so. While large EM programs like in Cook County, Illinois, and Ramsey County, Minnesota, do not charge fees, a recent report from the Fines and Fees Justice Center revealed how common user fees have become. According to the report, they range from $1 to $40 per day. In addition, many electronic monitoring programs include a setup fee on the order of $250 plus the requirement to install a landline phone. These charges can create a mountain of debt for monitored individuals and their families, often posing the dilemma of whether to pay the EM assessments or cover necessities like food and utility bills.

Lastly, this new paradigm needs to support the emergence of an organized resistance to electronic monitoring. This resistance contains two components: applying an activist and policy-oriented research lens to EM, and mobilizing impacted populations against this technology. The cutting edge of the research component lies in the immigrant rights movement. Here a series of reports, webinars, toolkits, videos, online classes and research from Mijente, Just Futures Law, Community Justice Exchange and nearly a dozen other organizations have outed companies like Palantir, LexisNexis and Thomson Reuters as major players in tracking immigrants. Informed by the lived experience of thousands of monitored migrants, these investigations show how companies create personal profiles of millions of people that can be sold or used to identify networks of individuals allegedly involved in criminal activity.

Activist researchers in the criminal legal space, who are fighting for the elimination of cash bail and pretrial detention, have also helped lift the veil off electronic monitoring. Working closely with the Illinois Coalition to End Money Bond and the abolitionist Chicago Community Bond Fund, a 2021 report by researchers at Chicago Appleseed, led by Sarah Staudt, statistically showed that electronic monitoring did not reduce failures to appear for court dates.

Appleseed is not alone. Abolitionist-oriented critics from mainstream universities have also entered the EM research fray. Teams headed by George Washington University Law School’s Kate Weisburd and UCLA School of Law’s Alicia Virani have unearthed previously unexplored policies and practices. Weisburds team collected documents from 44 states, finding a plethora of egregious EM policies including in Sacramento, California, where fees once ran as high as $47 a day for certain populations. Viranis work in Los Angeles depicted a “New Jim Code” in EM, with Black people comprising 31 percent of those being monitored in a county where they comprise just 8.1 percent of the population. The Harvard Kennedy Schools Sandra Susan Smith, using a more interview-based approach, published a detailed case study of electronic monitoring in San Francisco.

A final critical area of research work has focused on the technical errors of the devices, particularly false alarms that incorrectly identify a person’s location. Such technical errors can lead to reincarceration for violation of rules. The most startling revelations in this regard came from Chicagos Lucy Parsons Lab and the nonprofit Triibe. Out of thousands of EM alerts in Cook County, their findings classified more than 80 percent as false alarms. Such a high rate of false alarms meant that rather than using scientific criteria, authorities had to arbitrarily decide which alarms merited a response and which would simply be ignored.

The cumulative impact of this wave of research, especially when it reveals the lived experiences of monitored people, has informed several legislative efforts. In at least three states, activists campaigning to eliminate cash bail and restructure pretrial justice have been able to include measures in statewide legislation to restrict the use of electronic monitors and reduce the harm they do. The Illinois Pretrial Fairness Act, the first law in the country to ban cash bond, included stipulations that guaranteed two days a week of movement for individuals being monitored so that they could do basic tasks like shopping and laundry. The law also mandated a full-fledged court hearing to place anyone on a monitor who is released before trial. Activists in California and New York fought to halt efforts to expand the use of electronic monitoring through clauses in state reform laws. Californias recent AB 2658 ensured that youth on EM received credit for time served while on a monitor and also compelled courts to review the continued monitoring of an individual youth every 30 days.

In addition to research and legislative advocacy, organizing by people incarcerated in federal facilities has added a new dimension to EM resistance. As part of implementing the CARES Act, then-Attorney General William Barr issued a memo to the Bureau of Prisons (BOP) in 2020, ordering the release of certain individuals to home confinement, particularly those with impending release dates or underlying health conditions. Barr stipulated those released should be subject to location monitoring services.” Over the course of the next two years, the Feds released more than 40,000 people to home confinement, most on electronic monitoring.

Implementation did not go smoothly. The Feds bypassed many eligible for release. Others were sent back to prison for petty violations like letting the battery on their monitor run out. In response, people at Danbury Womens Prison, the Connecticut prison on which Orange Is the New Black was based, took the radical step of forming the Danbury 100. They established themselves as a registered nonprofit, set up a website and launched a Facebook group with 171 members where they shared campaign strategies and personal advice. Led by two women released from Danbury, Dianthe Dawn Brooks and Wendy Kraus-Heitmann, the Danbury 100 advocated for those overlooked for release and joined with Families Against Mandatory Minimums to help secure the re-release of 76-year-old Gwen Levi, who was arrested while on home confinement because she didn’t answer a phone call while she was participating in a computer class.

In an interview with Truthout, Brooks said since only eight people — of more than 40,000 — were returned to prison over new criminal conduct after being released following the Barr memo, authorities should recognize that they could release people and communities could still be safe.” She rejected the viability of incarceration, arguing there are community outlets that could be utilized to keep people on the outside.”

Electronic monitors have been advanced as a quick-fix solution for mass incarceration for many years. During the pandemic, they became the go-to answer for decarceration. But there are no quick-fix, one-dimensional solutions to either mass incarceration or the surveillance state. No database, algorithm or reporting requirements will be sufficient to ultimately eliminate or even severely restrict this technology of incarceration. Rather, we need a comprehensive framework that acknowledges the need for data as well as the need for that data to be linked to the lived experiences of impacted people.

Too often policy makers and even activists settle for electronic monitoring because they conclude it is better than jail.” As someone who spent a year on electronic monitoring, I reject this simplistic response. Better than jail” offers nothing but a false binary, as if we can only imagine two alternatives: a cage or a tether. The third option is what we need: freedom. Advancing e-carceration will never get us there.

Thanks to Emmett Sanders and Kate Weisburd for contributions to this piece.