by Kendra Albert and Maggie Delano
Electronic monitoring is supposed to keep people out of jail. But it’s actually making the criminal justice system more punitive, not less.
The United States has the largest prison population in the world: over 2 million people are incarcerated in federal and state prisons, with an additional 4.7 million people on probation or parole. This prison population is disproportionately black and brown—according to the Sentencing Project, black people are incarcerated at a rate five times higher than white people, and Latinx people are incarcerated at a rate 1.4 times higher than white people.
As prison populations have expanded and costs have increased, policy wonks with many different political viewpoints have looked to alternatives, including monitoring people electronically instead of imprisoning them. In The Atlantic, Graeme Wood praises this approach for presenting “a revolutionary possibility: that we might turn the conventional prison system inside out for a substantial number of inmates, doing away with the current, expensive array of guards and cells and fences.” “The potential upside,” he writes, “is enormous.”
Commonly deployed in the form of an ankle bracelet, electronic monitors are not just supposed to lower costs, but also reduce prison overcrowding, decrease parole violations, and lower recidivism rates. Most of the academic work on electronic monitors focuses on these issues. Are people released from prison and tracked electronically less likely to reoffend? Does monitoring reduce crime?
But as these questions occupy the minds of scholars, the reality of life with an electronic shackle seldom enters the narrative. The truth is that electronic monitors increase the impact of the criminal justice system rather than dampen it. And as the technology outpaces our critical reckoning with the surveillance apparatus that we are building in place of prisons, it will likely only get worse.
21st Century Shackles
The primary form of electronic monitoring used in the United States is ankle bracelets that are worn continuously and used to track the location of the people wearing them. The devices track a user’s location using radio frequencies (RF) or the global positioning system (GPS), which relies on satellites. In 2015, more than 125,000 people were supervised using these devices.
RF devices generally don’t pinpoint a person’s location. Instead, they only monitor whether or not the wearer is at home, and are used for “house arrest.” (Usually, a person on house arrest may only leave their home for a set of prescribed activities, like going to work or attending religious services.) They connect to a base station that is plugged in at home, and link to the internet via a landline or a dedicated cellular unit.
By contrast, GPS monitors track location based on satellite information. As a result, they can alert parole officers and other officials if the wearer enters a restricted area, such as a school zone. GPS systems tend to lead to less restrictive rules, but also share more information with the police. Some GPS ankle monitors have transmission built-in; others require that a dedicated cell phone or other transmitter be carried at all times. For all types of devices, police are alerted if the device strap is cut or if the sensors detect other types of tampering.
Ankle monitors are usually bulky. As a result, they can cause both physical and psychological discomfort. Even one of the newest types of monitors, BI Incorporated’s LOC8, weighs in at 6 ounces and is 4.125 inches wide, 2.5 inches tall, and 1.25 inches in depth. For comparison, an Apple Watch is 3.6 ounces, 1.4 inches wide, 1.6 inches tall, and 0.44 inches deep.
Many of those who have worn ankle monitors refer to them as their “shackles” and feel enslaved by the device. Wearers report the feeling of being watched, and have found the psychological discomfort even more profound than the physical. Some also experience stigma—because of the size of the devices, they can be obvious to casual viewers, endangering wearers’ employment prospects and potentially resulting in street harassment.
Virtually everyone who has worn an ankle monitor has had a technological issue with their device, compounding the psychological stress. Battery life is a constant concern. Many parole officers believe that wearers let their monitors die in order to travel more freely, so they view dead batteries with suspicion. Thus wearers are rightfully concerned that if their monitor batteries die they can be thrown in jail or sent back to prison. Having to charge a device for two hours at a time via a two-foot charging cable only exacerbates the feeling of being chained. Constantly having to find access to power can cause significant anxiety.
There is also a literal cost to being monitored. Individuals wearing ankle monitors are often required to pay a $5 to $20 fee per day of use, despite the fact that the retail price for a GPS monitor is only between $150 and $250. LCA, the primary provider of electronic monitoring technology for the state of the California, calls these programs “self-funding,” and claims they are “typically provided at no cost to the county.” When the monitors are used on juveniles, parents and family members end up paying the costs. Some counties in California have opted to create indigent funds for those truly unable to pay for the monitoring—but in at least one county, the determination of whether a wearer has the ability to pay is made by the monitoring company itself.
Given this history, it seems likely that electronic monitoring will continue to become more popular, especially with the advent of new technological capabilities. The state-of-the-art LOC8 device introduces an accelerometer, which measures the user’s movement. This means it can now function as a tracking device in the same way as a Fitbit does—only users are legally required to wear it. Parole officers could know when the wearer is sleeping, moving, and more, all using acceleration data.
As the technology improves, an important question technologists must ask is whether we should build these tools, not whether we can.
For most wearers of electronic monitors, being out in the world is better than being in prison, even if one is under surveillance. But like many techno-utopian solutions, the reality of electronic monitoring as an alternative to prison is far removed from the fantasy. The user experience of ankle monitors lags behind even basic consumer tracking products, like the Fitbit or the Apple Watch. Although companies call the people who wear the monitors their “clients,” their real customers are police departments and prison systems. The website of BI Incorporated, an electronic monitoring provider, highlights their “easy-to-use mapping features” and twenty-four-hour call centers. The priority is selling government officials on the product—not the comfort and quality of life of the person wearing the device.
Second, as the activist and scholar James Kilgore has argued, electronic monitoring allows law enforcement officers to impose additional conditions on parole and probation, creating new possibilities for arbitrary punishments. In his 2015 report “Electronic Monitoring is Not the Answer,” Kilgore interviewed Kent Schultz, who was forced by his parole officer to run back into his burning apartment to retrieve the base station for his ankle bracelet. Despite saving the base station, he was thrown in jail twenty-four hours later. A warrant had been automatically generated for his arrest.
The faults in the technology can compound these problems. Kilgore recalls that when he himself was on a monitor, he was forced by a poor GPS connection to stand in his front yard at 2 AM during an Illinois winter so that his device could reconnect. Most jurisdictions do not have firm rules for what can and cannot be required of a person on a monitor, as police claim the person consents to the surveillance. The question of whether that consent is meaningful when the alternative is imprisonment is usually ignored.
There is also what scholars Catherine Crump and Christina Koningisor call the “net-widening problem.” This is the fact that the convenience and low cost of electronic monitoring to police departments might result in entirely new populations being placed under surveillance—not just as a substitute for incarceration, but as an expansion of the criminal justice system.
As surveillance technologies get cheaper—and as those costs are passed from police departments to users—the incentives to deploy electronic monitoring grow stronger. Even low-risk offenders who would have been let out without cash bail might be targeted for monitoring. The technology was originally intended for parole and probation, but is now being widely used to ensure people with pending immigration cases and asylum seekers show up in court.
Once these devices are widespread, it becomes easier to justify accessing the data for prosecutorial, rather than rehabilitative, purposes. The California Department of Corrections and Rehabilitation claims that “GPS has proven to be an effective tool used in supervising offenders who are at high risk of re-offending and where knowledge of their whereabouts is a high priority for maintaining public safety.” What that means in practice is that police within the United States routinely access ankle monitor GPS data to see if wearers were near crime scenes, without the legal process that would be required to gain that information from a third party.
Sometimes such location information is gathered for the express purpose of prosecuting new crimes, unrelated to any rehabilitative purpose. In a recent case out of New York, a judge finally pushed back. Judge Jack Weinstein ordered the suppression of all evidence gathered through an ankle monitor. He found that law enforcement had required a parolee to wear the monitor for an additional two years to gather information for a pending criminal indictment, and that was an unconstitutional violation of the parolee’s rights.
This scope creep means that electronic monitoring tends to increase the punitive effects of the criminal justice system rather than decrease them. Although initially billed as a way of keeping people out of jail, monitors get used on people who would never be in jail anyway. Electronic surveillance technologies and data aggregation, built without technological checks and balances, empower fewer police officers to monitor more people—and to punish those who do not comply. At every turn, the design of these systems prioritize police over wearers. The companies that sell them have little incentive to do otherwise.
But it isn’t just the technology. Many of the problems with electronic monitoring are problems with the criminal justice system more generally.
Like many technologies, electronic monitoring is accelerating the rate of change. As deployment outpaces the development of new policy norms or rights frameworks, it amplifies existing disparities. Surveillance disproportionately affects black and Latinx communities because the criminal justice system disproportionately affects these communities. Building the future we want will require not only imagining different ways to use technology, but winning an argument about whether punishment or rehabilitation are better goals.
Kendra Albert is a lawyer who writes and thinks about the impact of technologies on society.
Maggie Delano is a PhD candidate at MIT who builds wearable medical devices.