Pretrial detention and the right to be monitored.

AuthorWiseman, Samuel R.
PositionIntroduction through II. Electronic Monitoring as an Alternative B. Effectiveness, p. 1344-1372 - Author abstract

ESSAY CONTENTS INTRODUCTION I. FLIGHT RISK, PRETRIAL DETENTION, AND THE NEED FOR ALTERNATIVES TO MONEY BAIL A. The Burdens of Pretrial Detention 1. The Criminogenic and Plea-Inducing Effects of Pretrial Detention 2. Financial Harm to Defendants and Their Families 3. The Tax Burden B. The Problems with Money Bail 1. Wealth Discrimination 2. Direct Financial Burdens on Defendants and Their Families C. Not Worth the Cost: The Ineffectiveness of Money Bail D. Traditional Alternatives to Money Bail II. ELECTRONIC MONITORING AS AN ALTERNATIVE A. Technologies and Implementation B. Effectiveness C. Cost D. Privacy and Net-Widening E. Inequality III. THE RIGHT TO BE MONITORED A. An Eighth Amendment Right to Be Monitored 1. Current Eighth Amendment Doctrine 2. Text, History, and Purpose 3. Applying Intermediate Scrutiny B. Statutory Approaches IV. THE CASE FOR JUDICIAL INTERVENTION A. Public and Private Interests in Pretrial Release B. An Imperfect Judicial Solution CONCLUSION INTRODUCTION

Innocent or not, roughly half a million people in the United States are in jail awaiting the resolution of the charges against them at any given time. (1) Some of these defendants are dangerous, but a significant number are charged with nonviolent offenses and simply cannot afford relatively modest bonds imposed to assure their presence at future court appearances; roughly thirty percent of state court defendants assigned bonds of less than $5,000 are detained. (2) They cannot work during the often considerable time that they spend in jail (3)--leaving any children and other dependents to fend for themselves--and their jobs may not be waiting for them when they get out. (4) Apart from the often devastating impact of pretrial detention on defendants and their families, the Attorney General has estimated that the annual cost to taxpayers is nine billion dollars. (5) Nor is the bail system outstandingly effective: roughly fifteen percent of defendants released on commercial bonds fail to make at least one court appearance. (6) Responding to these problems, both the Conference of Chief Judges and the Conference of State Court Administrators have recently called for the use of more accurate pretrial assessments of dangerousness and flight risk, and for the release of non-dangerous defendants. (7)

Although rising detention rates and shrinking governmental budgets have recently brought these issues wider attention, their basic contours have not changed for decades. (8) With the rapid advance of computing technology, however, the available solutions have changed a great deal. Increasingly sophisticated remote monitoring devices have the potential to sharply reduce the need for flight-based pretrial detention. In a world in which scientists can monitor and recapture wolves, (9) snakes, (10) and even manatees (11) in the wild, and

AT&T Wireless offers family-member tracking for $10/month, (12) the question of finding other ways of ensuring a non--dangerous defendant's presence at trial is one not of ability, but of will--albeit a difficult one. By reducing jail populations, these technologies can lower overall costs--it costs at least four times as much to jail a defendant as it does to monitor him (13)--and, while invasive, are vastly preferable to a jail cell for most defendants.

Among bail reform advocates, however, monitoring has relatively few vocal proponents, perhaps due to understandable, but (I will argue) probably overstated, privacy concerns. Indeed, the problems addressed in this Essay are in some respects the reverse of the usual concerns about criminal justice technology. The rapid advance of technology has been accompanied by a corresponding increase in legal scholarship concerned about its effect on the relationship between government and society. And not without reason, of course: increasingly efficient, inexpensive, and nearly invisible methods of surveillance and control have the potential to radically alter that relationship, and law and lawyers are appropriately concerned with preventing an Orwellian disaster. (14) Largely omitted, however, from these larger debates is discussion of where new government technology would be most beneficial. (15) Although placing GPS monitors on the free population would impose enormous privacy costs, for those whom the government is already allowed to imprison in pursuit of its goals, technology that allows those goals to be achieved less obtrusively is a nearly unalloyed good.

More critically, as previous generations of bail reformers found, motivating governments to act for the benefit of the poor and unpopular against the will of the commercial bail industry is an arduous task; at the legislative level it is often nearly impossible. (16) However, for the many detainees who are jailed not for dangerousness but for flight risk, there are meaningful constitutional and statutory grounds for future judicial intervention. A right to pretrial monitoring fits squarely within existing state and federal statutes requiring courts to impose the least restrictive conditions of release. (17) More fundamentally, although the Bail Clause has recently been somewhat neglected by both courts and scholars, this is precisely the type of problem it was meant to address: monetary conditions resulting in detention are excessive when equally effective, and cost effective, alternatives for reducing flight risk are available. That is the argument I advance here: (1) that poor, non-dangerous criminal defendants are a discrete constituency in need of judicial protection because they are effectively locked out of the political process (an argument vividly illustrated by their current treatment under the Bail Reform Act), and because historic efforts at reform have repeatedly failed; (2) that, while further studies are needed, electronic pretrial monitoring is, or will soon be, a less expensive, less burdensome, and judicially administrable alternative to money bail for ensuring appearance at trial; and (3) that the emergence of this alternative necessitates a new jurisprudence of excessiveness under the Eighth Amendment prohibition of "[e]xcessive bail."

The Supreme Court, although it has defined the narrow substantive bounds of the Excessive Bail Clause, has failed to clarify how close the fit must be between the reasons for restricting pretrial liberty and the burdens imposed. Nor has the Court explained whether the analysis must consider reasonable alternatives not provided by the legislature--thus leaving in question the definition of "excessiveness" itself. As the number of pretrial detainees continues to rise and monitoring technology improves, these questions are likely to become vital, and as an initial step towards resolving them I suggest that a standard resembling, at a minimum, intermediate scrutiny is warranted. Under this approach, maintaining a money bail system that consistently results in detention for poverty is substantially more burdensome than necessary if an equally effective and efficient option that does not rely on detention exists.

Part I of the Essay documents the serious problems with the current system and the limitations of the most commonly proposed alternatives. Part II provides an overview of existing monitoring technologies and their implementation and presents the argument that the benefits of replacing detention for flight risk with the use of pretrial monitoring far outweigh the costs. It concludes that the usual objections to government monitoring--the intrusion on individual privacy and the threat of surveillance extending to new segments of society (18)--have relatively little force in the pretrial context, where detention currently all but extinguishes privacy interests and the number of criminal defendants is largely independent of the means of preventing flight. Part III lays out the doctrinal avenues for achieving a right to pretrial monitoring, defining the clearest and most likely path toward the right. In addition to a strong case under current--but amendable--state and federal statutes, there are powerful doctrinal, textual, and historic reasons to conclude that the...

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