Pretrial detention and the right to be monitored.

Author:Wiseman, Samuel R.
Position:II. Electronic Monitoring as an Alternative C. Cost through Conclusion, with footnotes, p. 1372-1404
  1. Cost

    As the American Bar Association and other organizations have begun to emphasize the expense of pretrial detention, (135) the practical benefits of the technological alternative have become even more compelling. Increasingly computerized, they do not require the staff, medical programs, and vast security controls of pretrial detention. Monitoring programs appear to generate significant savings if used in place of pretrial detention, although some of the savings may be lost if convicted defendants are not given time-served credit for time-monitored, and thus eventually spend the same amount of time incarcerated. (136)

    Pretrial services programs that combine technology with relatively inexpensive monitoring have substantially reduced the financial cost of preventing flight. Miami-Dade County cut costs from approximately $20,000 per pretrial defendant to $432 annually for released, monitored defendants, (137) and the Southern District of Iowa saved $1.7 million over one fiscal year by releasing 15% more defendants. (138) Federal active monitoring of pretrial defendants in the 1990s cost approximately $2.77 to $9.04 daily, (139) compared to daily costs of pretrial detention ranging, according to some estimates, from $50 to $123. (140) Other estimates suggest that electronic monitoring programs "[o]n average ... cost between five and twenty-five dollars per day." (141) And approximately one out of three offenders who were electronically monitored in Florida between 2001 and 2007 would have otherwise been jailed at six times the cost, according to one study, which concluded that monitoring was a "cost-effective method of dealing with offenders." (142) Similarly, results from Europe also suggest that monitoring can be far less expensive than other options if implemented properly--ensuring that monitoring is implemented in lieu of jail, thus offsetting costs. (143)

    As GPS, live audiovisual monitoring, and other technologies become more common outside of the criminal world for ease of navigation and of sharing life experiences with friends and family, costs likely will continue to decline, while effectiveness will rise. Governments need not operate the programs themselves: already, multiple competing private providers exist (and one could imagine bond agents, some of whom already use tracking devices, becoming monitoring agents). (144) The cost-effectiveness of a monitoring program, of course, will depend on the details. A minimalist system, designed to track the location only of those who have already failed to appear and giving at least partial time-served credit, which is clearly more desirable from a privacy perspective, will also be more cost-effective than a more intrusive program (145) without credit. And, for better or worse, it is likely that monitoring programs will shift pretrial flight prevention costs to defendants; some defendants in pretrial release programs already pay for the cost of their own monitoring. (146) If electronic monitoring is implemented on a broader scale, more legislatures will try to recoup the costs of monitoring from indigent defendants as they have done with counsel (147) and jail costs. (148) As others have noted, this is deeply problematic, (149) but it is still preferable to detention (which defendants might also have to pay for).

    Empirically, the cost savings of monitoring in lieu of detention require further detailed investigation. The goal here is not to suggest that monitoring is completely effective or costless, but rather that the available data suggest that it can be at least as cheap and effective as money bail.

  2. Privacy and Net-Widening

    Another, more fundamental set of reservations centers on privacy. The degree to which a monitored defendant's privacy is invaded depends on the technology employed--a device that transmits location data only on the day of a court appearance is less invasive than one that transmits constantly, and both are far less invasive than a device that transmits audio and video. But even the most limited version is a serious intrusion, and privacy concerns almost certainly explain why monitoring technologies have not so far been widely heralded by academics and criminal justice advocacy groups as a solution to the serious and seemingly intractable problems with money bail and pretrial detention described above. (150)

    Focusing solely on defendants who would otherwise be detained for failure to post bond, privacy objections have little purchase. Even the most thorough observation--even if it causes defendants to carefully monitor and restrict their behavior in order to limit the government's knowledge of their lives--would for most defendants almost certainly be preferable to imprisonment. Agence France-Presse, for example, described Strauss-Kahn's ankle bracelet as a "symbol of shame for the beleaguered global finance titan," (151) but even a high-profile figure like Strauss-Kahn apparently preferred shame (and constant surveillance) to imprisonment. In one study of those subject to home curfew and monitoring, the most common complaints voiced included "[n]ot being able to go to the store when you want" and "[n]ot being able to go out to eat when you want," followed by "[h]aving to wear a visible monitor." (152) These are significant deprivations, but, unsurprisingly, "most electronically monitored offenders prefer house arrest to jail." (153) A fortiori, a less intrusive, curfew-less monitoring regime would also be preferable to jail.

    This calculus holds even if, leaving aside the tremendous increases in liberty and physical and psychological well-being, privacy is used as the sole criterion. Being in jail, after all, involves not only near-constant surveillance by guards, but also by fellow inmates. And in the absence of other realistic options for systemic reform, the perfect must not be the enemy of the good.

    Not surprisingly, then, opposition to the use of monitoring technology has largely focused not on those already subject to a high level of government surveillance, but on the risk that technology will allow the government to surveil more people (154): ever cheaper and more powerful monitoring equipment lessens resource constraints, and the physically unobtrusive nature of the monitors themselves lessens political and constitutional opposition. (155) These net-widening concerns are slippery slope arguments--the use of monitoring in a given context may not be bad in itself, but it will lead to the use of monitoring in other, more objectionable contexts. And as Frederick Schauer observed, slippery slope arguments are empirical arguments. (156) Thus, the question is whether the benefits of replacing pretrial detention for failure to post bond will outweigh the harms from any resulting increase in the number of people monitored. These net-widening concerns will be considered in two parts, first across society at large, and then among pretrial defendants.

    In many cases, of course, there is good reason to be skeptical of the expanded use of surveillance and control technology in criminal justice. Although the precise causes of our astoundingly large prison population are disputed, (157) the costs of physical imprisonment impose at least a weak restraint on our desire to incarcerate. Technology eases that restraint, and since political support for crime control measures remains strong, and the Supreme Court has taken an extremely limited view of the privacy rights of those convicted of a crime, (158) this allows government to extend its control over a far wider group. Thus, for example, as Wayne Logan (159) and Erin Murphy (160) have noted, custodial "treatment" of dangerous sex offenders is quite expensive, but monitoring is not, (161) allowing non-dangerous offenders to be swept into the net. For the many who, quite reasonably, think that government already exerts too much control, particularly over vulnerable groups, concern over advancing technology is generally justified.

    Although the prospect of the government requiring all citizens to wear ankle monitors or, worse, a pair of Google glasses that upload everything we see and hear to the Internet, is indeed a frightening one, using monitoring in lieu of detention is unlikely to move us meaningfully closer to that nightmare scenario. Crucially, the expanded use of monitoring technology in the pretrial context does not have the same potential to directly increase the number of people subject to the power of the state-that is, the number of pretrial defendants. (162) This is because the costs of pretrial supervision of non-dangerous defendants, whether in the form of traditional pretrial services programs, monitoring, or detention, although sizeable, simply do not play a meaningful role in determining the number of prosecutions. Relative to the costs of maintaining police departments, prosecutors' offices, and prisons (or their future technological alternatives), they are a drop in the bucket. The same may be said with respect to the political costs of maintaining a system in which the potentially innocent are thrown in jail with convicts for lack of funds. Thus, even a drastic reduction in the resource and political costs of pretrial supervision would be unlikely to cause a measurable increase in the number of criminal defendants. To be sure, as discussed below, it may affect the amount or form of that supervision, but the size of the population potentially subject to it will continue to be determined by larger factors, such as policing levels and policies (and thus arrest rates) and incentives for charging rates within prosecutors' offices.

    Nonetheless, there remains the worry that broader use of monitoring in the pretrial context will lead to its expanded use in other contexts, including probation and parole. As the supply of monitoring technologies increases, competitive production expands, and manufacturers learn new and cheaper production methods, the cost of monitoring is likely to shrink,...

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