Replicating the Problem of Punishment Before Verdict
by Matthew Perry, Richmond Community Bail Fund
Recently, one of our clients — who we’ll call Brandon — missed his court date because of an extended hospital stay. Despite Brandon’s extenuating circumstances, a judge found him liable for his absence, and set bail at $5000. Because our organization — Richmond Community Bail Fund — was already familiar with Brandon, we quickly drove to the local magistrate’s office to pay his bail and restore his freedom. When we arrived, however, we were told that Brandon needed to be fitted with a GPS monitor as a condition of his bail, and could not be released until that fitting occurred. We asked how long this might take. The magistrate declined to give us an estimate. After two weeks, Richmond City officials finally drove to the facility where Brandon was being detained, only to tell him that he needed a physical address to qualify for a GPS monitor. Brandon did not have a permanent living arrangement, and was unable to secure temporary housing from other sources. Because he lacked a domicile, Brandon was forced to continue living in a cage. It has been over four weeks since Brandon’s arrest, and, despite remaining legally innocent, Brandon has yet to be released.
The use of Electronic Monitoring (EM) devices in any corner of the criminal punishment system is wrong and warrants resistance. When EM devices are assigned to legally innocent defendants during bail proceedings, however, it takes on an added layer of injustice. The presumption of innocence is suspended, and defendants are forced to satisfy onerous, often unattainable, conditions lest they be re-incarcerated. In most state and local courts, defendants are forced to pay for the installation and maintenance of their device. Installation fees regularly exceed $150, and maintenance fees often total upwards of $300 a month. Moreover, EM demands that wearers limit their movement to within a set of boundaries drawn by the state — whether or not an individual can move beyond those boundaries for activities such as buying groceries or interviewing for a job is determined on a case-by-case basis, and can depend on the personal disposition of the state employees responsible for administering EM. If you can’t afford the fees, or if you are reported as exceeding your allowed range of movement, you risk re-incarceration. Punishment precedes verdict.
Even if the technology worked perfectly, EM would be bad policy. But that isn’t the case — EM’s ethical shortcomings are matched only by its scientific unreliability. Stories abound of people assigned to EM who abide by its draconian freedom-of-movement restrictions, only to have the device erroneously report a violation. James Morgan invited reporters into his room — which was well within the boundaries set by the parole agent — to watch as his EM device began to flash, indicating that we was “out of range.” Wayne Murphy, who was also required to wear an electronic device as a condition of his parole, said that his device routinely malfunctioned during the nine months he was required to wear it. “I never knew when I was going back to jail,” Murphy said. “It was psychological torture.”[1] Shubha Bala, an electronic monitoring researcher at the Center for Court Innovation in New York, has performed studies which revealed the tendency of EM devices to lose signals or issue inaccurate reports in dense urban areas without a clear view of the sky. Bala’s research also revealed that the devices tend to work best when moving, which can lead to “location drift” when the person is immobile.[2] All of which is to say, when EM disrupts the lives and livelihoods of legally innocent people, it does not even bother to do so precisely. This is precisely why we cannot trust the criminal punishment system to use the threat of incarceration as a cudgel, through EM or otherwise: it will never be wise enough, nor will it ever care enough, to fairly and accurately assess who does and who does not deserve to be locked in a cage.
We have, through the tireless efforts of grassroots activists, created a political moment wherein the money bail system is growing increasingly unpopular. Bail funds, legal advocates, and organized community members have successfully strongarmed many jurisdictions into rolling back the practice of using a person’s ability to afford bail as a determinant of their freedom. The question, then, has become “what comes next?”. Despite its manifest imprecision and excessively punitive character, or perhaps because of them, EM has emerged as the most popular answer. More than 125,000 people were placed on electronic monitoring in 2015, a figure that rose nearly 140% from 2005.[3] By the end of 2018, according to Israeli software provider SuperCom, electronic monitoring is projected to yield $6 billion in annual revenue for private corporations, mostly through offender-funded programming.[4]
We cannot allow this happen. EM does not represent a salutary alternative to money bail so much as it does a cynical reformulation. It replicates the problem of punishment before verdict, and re-traces the racially disparate outcomes present under money bail by imposing harsher restrictions for Black people on monitors or making it more difficult for them to gain pretrial release. EM’s only unique function is that it whets the appetite of opportunistic reformers who object to the manifest ugliness of pretrial detention, but avert their gaze when the incarceration of legally innocent people is made covert and given a false veneer of technological exactitude. There is no room for ambiguity: in order to build a sufficiently just and equitable world, EM must go, and pretrial detention with it.
The Richmond Community Bail Fund exists to restore the presumption of innocence to defendants so they don’t lose their jobs, families and critical services while also reducing the financial burden on our community of detaining citizens prior to their day in court.
Share your own stories about electronic monitoring with @mediajusticeon Twitter using #NoDigitalPrisons.
This is part six in a series titled #NoDigitalPrisons. Learn more about the issue here.
References:
[1] Koran, Mario, “Lost Signals, Disconnected Lives.” Wisconsin Center for Investigative Journalism, 24 March 2013. Accessed 11 July 2018.
[2] Kilgore, James, “E-Carceration: The Problematic World of Being on an Electronic Monitor.” Alternet, 20 October 2016. Accessed 11 July 2018.
[3] Public Safety Performance Project, “Use of Electronic Offender-Tracking Devices Expands Sharply.” 7 Sep 2016. Accessed 11 July 2018.
[4] Markowitz, Eric, “Chain Gang 2.0: If You Can’t Afford This GPS Ankle Bracelet, You Get Thrown in Jail.” 21 Sep 2015. Accessed 11 July 2018.
