By Hannah Zhao, José Martinez, and Will Greenberg
Incarceration rates in the United States have long been among the highest in the world, and in response to the systemic flaws and biases unveiled by the renewed scrutiny of the criminal legal system, many advocates have championed new policies aimed at reducing sentences and improving conditions in prisons. Some have touted the use of electronic monitoring (EM) as an alternative fix to ensure that people whose cases have yet to be adjudicated are not physically detained. Unsurprisingly, those most often making these claims are the for-profit firms offering EM technology and the governmental agencies they contract with, and there is little data to back them up. In a new report, the Vera Institute of Justice provides the most detailed data yet showing that these claims don’t match reality, and outlines a number of issues with how EM is administered across the country.
Another Private Sector Wild West
According to interviews and an analysis of policies across hundreds of jurisdictions, the Vera Institute found that the use of EM was an unregulated patchwork across counties, states, and the federal government. As private firms market new products, the level of testing and quality assurance has failed to keep up with the drive to get contracts with local and state law enforcement agencies. Relying on technology produced by such a disordered industry can lead to reincarceration due to faulty equipment, significantly increased surveillance on those being monitored and their household, and onerous requirements for people under EM than when dealing with probation or parole officers.
Even the question of jurisdictional authority is a mess. The Vera Institute explains that agencies frequently rely on private firms that further subcontract out the hardware or software, and individuals in rural areas can create profitable businesses for themselves that only serve as a middleman between the criminal justice system and the hardware and software vendors. The Vera Institute suggests that this can lead to corruption, including the extortion by these small subcontractors of people held on EM, often with no oversight or public sector transparency. That presents a problem to the data collection, public records requests, and other investigative work that policymakers, advocates, and journalists rely on to find the truth and inform policy.
Further, the costs of EM are frequently passed on to the people forced to use it, sometimes regardless of if they have the means to pay, whether the EM is an obstacle to their employment, or whether they are under monitoring pre-trial (where presumption of innocence should apply) or post-sentencing (after a guilty verdict). And these costs don’t necessarily buy them greater “liberty,” as many forms of hardware or app-based software increased around-the-clock surveillance at the hands of private firms, once again with little to no oversight or ability to access data through public records requests.
ICE doubles down on electronic monitoring
According to the Vera Institute’s estimates, from 2017 onwards the single largest user of EM in the United States has been Immigration and Customs Enforcement (ICE) as part of its Alternative To Detention (ATD) programs. And in the last few years, that usage has skyrocketed: Vera’s report states that between 2021 and 2022, the number of adults under ICE’s EM program more than tripled, from 103,900 to 360,000.
For those currently under ICE’s EM surveillance, their experience is primarily dictated by a single company: BI Incorporated, from whom ICE has purchased all its EM infrastructure since 2004. While BI’s offerings have recently shifted away from the GPS-enabled ankle monitors known to shock and cut their users towards smartphone apps and smartwatches, a 2022 investigation from The Guardian revealed that monitored people experience a lack of technical support from BI, frequent bugs that can prevent them from complying with mandatory check-ins, and few protocols for how their issues are handled.
On top of all of these issues, a 2022 joint investigation led by Just Futures Law claims that ICE and BI’s policies for collecting and retaining people’s sensitive data are overbroad and self-contradictory. The uncovered documents showed vast amounts of extremely private information (including biometrics, location data, data about people’s contacts and communities, and more) were collected and potentially retained by ICE for up to 75 years. One document (p. 123) revealed that data collected by ATD programs can be used for mass arrests, as in the case of a Manassas, Virginia office sharing geolocation data with ICE to arrest 40 people.
Given that the average individual will spend 558.5 days in an ATD program, this gives ICE access to a dizzying amount of highly sensitive data for decades to come; data which can (and has) been used to arrest and deport people.
No trend of correlation between electronic monitoring and decrease in physical detention
The Vera Institute found no general trend across jurisdictions that usage of EM led to a decrease in the physically incarcerated population. While the Vera Institute noted a tenfold increase in the number of individuals subjected to EM from 2005 and 2022, the physically incarcerated population only decreased by about 15%. Moreover, the incarcerated population decline is in large part due to COVID-19 directives, and it’s unclear whether the downward trend will continue absent those restrictions.
Similarly, despite ICE’s use of EM being dubbed an “alternative to detention” (ATD), the rise of ATD program budgets has not coincided with a decrease in detention. Meanwhile, the programs have historically been used on “individuals who have been released from detention or who were never detained in the first place,” meaning they affect those who would otherwise be free from physical detention.
Notably, EM technology has become more invasive and extensive. Traditional EM technology consisted of wearable devices equipped with Global Positioning System (GPS), radio frequency (RF), or Secure Continuous Remote Alcohol Monitoring (SCRAM) capabilities. However, newer technologies used by ICE and the criminal justice system may additionally employ facial recognition technology, voice recognition technology, and the gathering of real-time location tracking and various other biometrics via independent devices or mobile phone applications.
The lack of correlation between EM and decarceration and the advancement in EM technology suggests that EM, rather than serving as an alternative to detention, is merely another tool in the government’s arsenal of carceral control.
Decreasing carceral control
And yet, it is possible to decrease the population subject to physical incarceration as well as that on EM. In response to the social distancing requirements at the beginning of the COVID-19 epidemic, Salt Lake City released hundreds of people, decreasing the number of people in the Salt Lake County jail by 45%. Because the Sheriff’s Prison Labor Detail program, which administers EM for those in jail on low-level and nonviolent offenses, draws its participants from those still in Salt Lake City jails, the drop in jail population similarly affected EM eligibility.
This simultaneous reduction in both the physically incarcerated population and those subject to EM contrasted with other jurisdictions’ programs, which saw a sharp spike in the number of individuals subjected to EM in the wake of COVID-19, such as that by the Federal Bureau of Prisons.
Portland, Oregon was another location in which the jail population and EM population fell concurrently. In the wake of the killings of George Floyd and Breonna Taylor, the Multnomah County Department of Community Justice found that the EM had a disproportionate impact on communities of color. This led Portland officials to express a desire to pause resuming pre-pandemic levels of EM, which they recognized perpetuates the same obstacles to freedom and injustice as our carceral system and “generally has few rehabilitative benefits.”
A worrying trend gets worse
Electronic monitoring is an all-encompassing form of surveillance for the person being monitored. It tracks every movement they make, records some of the most private data from their daily life, and effectively serves as a “form of incarceration that happens outside of prison walls.” And like other types of prison tech in the United States, it’s largely unregulated, disproportionately targeted at Black and Brown people and immigrant communities, and exploitative of the people it claims to serve. It also fails to address many of the problems its advocates and marketers claim it solves. Despite being touted as an alternative to incarceration, EM frequently targets people who would otherwise not be detained. Despite being sold as a cost-saving measure, its price is often paid by those forced to use it.
Electronic monitoring generally requires some forms of data collection, and usually this involves some of the most sensitive data we produce: biometric, location, and personally identifying information. Some EM apps go beyond collecting what’s absolutely necessary from a user’s phone, and many include language in their privacy policies that allows for sharing data for marketing purposes, as well as with law enforcement without a warrant. This amount of data collection and sharing is appalling even when a user can fully consent to an app’s terms, much less when someone is coerced by the state to comply with them. ICE’s data collection and retention policies are particularly odious, and the 75-year retention policy for EM data should be revised.
The recent explosion in the popularity of EM, especially within ICE’s ATD programs, continues a disturbing trend. The Vera Institute’s report helps to shine a light on this pervasive and unregulated industry, but it shouldn’t be this hard to determine how prevalent EM’s use is. People have the right to know how their criminal justice system functions, and that right extends to the private companies who profiteer from it. The report concludes by suggesting a number of policy recommendations, including national reporting requirements for EM’s use, prohibition of private vendors running EM programs, and an elimination of user fees. We think these represent the minimum of what must be done: lawmakers must do much more to protect people from privacy violations and ensure that EM doesn’t extend the harms of incarceration to those who would otherwise be free from physical detention.
Source: EFF
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