Scholars and advocates have long argued that the use of electronic monitoring in the criminal and immigration systems is unjustified, inequitable, and excessively punitive. The response to these arguments is almost always the same: monitoring, even with its drawbacks and punitive features, is better than incarceration. To be sure, one day spent on a monitor may be preferable to one day spent incarcerated in a decrepit jail cell or holding facility. On a systemic level, the same reasoning holds true: as ending mass incarceration becomes increasingly bipartisan, judges, policymakers, and advocates are looking for alternative responses to crime that they believe are more humane than prison. These views help explain why the use of ankle monitoring is sky-rocketing, and the technology is rapidly evolving to include audio features, as well as cellphone applications.
This “better-than-incarceration” reasoning, however, dangerously immunizes carceral surveillance technology from legitimate critique. Electronic monitoring (along with its attendant rules and restrictions) further entrenches the racial, economic, disability, citizenship status and gender inequities that are often the initial inspiration for decarceration efforts.
The better-than-prison reasoning is, moreover, not just a view held by advocates, policymakers, and judges. It is also baked into legal doctrine. In the criminal procedure context, for example, courts routinely uphold rights-restrictions associated with probation or parole (including the restrictions associated with monitoring) on the grounds that any defendant “could have rejected probation and elected prison.” An individual’s decision to elect the purported better-than-prison option has the effect of legalizing—and legitimating—otherwise unconstitutional state action. This logic holds true across a range of purported “alternatives” to incarceration, including labor camps, community service, and drug courts, to name just a few. As a previous LPE Blog post observed in the context of work, by “normalizing incarceration as the baseline, today’s carceral state enables racialized labor subordination to be presented as liberation.” So too is the case with monitoring: the better-than-prison reasoning suggests that monitoring offers freedom, when in fact, it does not.
In this short piece, we debunk four key myths that tend to uphold the “better-than-incarceration” rationale in the context of monitoring. While such a rationale, we believe, can sometimes be appropriate, it is frequently deployed in problematic ways—on the basis of faulty reasoning and to the detriment of those whom it purportedly benefits.
Myth 1: Monitoring is a minimally intrusive intervention.
Electronic monitoring is often justified as both more humane than prison and only minimally more invasive than the surveillance we are all subject to as increasingly digital citizens. From Ring doorbells to targeted advertising, what counts as unavoidable and inevitable surveillance is shifting such that an ankle monitor seems, in theory, no worse than wearing a Fitbit. Of course, using personal devices is a choice, but even setting this aside, were data from these devices routinely shared, tracked, and analyzed by the police in the same way that data from electronic monitors has been, there would be appropriate outcry. The intimate nature of geolocation data is precisely what prompted Justice Roberts in Carpenter to observe that “when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.” Yet, this is exactly the type of surveillance experienced by millions of people subject to criminal court supervision.
In many respects, monitoring is not an alternative to incarceration, but an alternative form of incarceration. Although not confined to a physical prison cell, electronic monitoring, like prison, restricts a person’s liberty, limits privacy, disrupts family relationships, and jeopardizes financial security. As our research reveals, being subject to 24/7 surveillance, as well as the myriad of rules and restrictions associated with monitors and court supervision, transforms the most private spheres of life—our bodies, homes and families—into highly regulated carceral spaces.
In addition to geolocation tracking, people on monitors in the criminal legal system are frequently subject to warrantless searches of their homes and electronic devices, collection of genetic material (such as DNA samples and regular drug and alcohol tests), and rules that dictate where they can live and with whom, how they parent, who they marry, where and when they can work, and what physical and mental health treatment they can receive. Intimate information—such as health records, biometric and geolocation data—is routinely shared between government agencies, the private companies operating the monitors, and law enforcement.
Monitoring makes it virtually impossible to lead a normal life and undermines stability when it is needed most – when someone is awaiting trial, or recently released from incarceration. There are dozens of rules, as well additional requirements related to the monitor (such as charging the device for two hours a day, never losing the GPS signal, and obtaining pre-approval before leaving home), physical and psychological pain caused by the monitor, and the constant fear of being detained for a technical violation. While each individual restriction may not seem like a burden on its own, they add up to the proverbial death by a thousand cuts. This tangled web of requirements is especially challenging for young people, people with disabilities, individuals subject to domestic violence. and those experiencing housing insecurity.
Myth 2: But for monitoring, people would otherwise remain incarcerated or detained.
Labeling electronic monitoring as a form of “decarceration,” “diversion,” and an “alternative to detention” stems from the assumption that monitoring in fact functions as an alternative to incarceration. This “but for” assumption — that but for monitoring, someone would be incarcerated — rests on an unproven empirical claim that people on monitors today would otherwise be incarcerated. While this may be true for some, for many it is not, and it is impossible to know with any degree of confidence who, in a world without monitors, would otherwise be incarcerated. To be sure, if the number of people incarcerated in the United States went down dramatically, while the rates of people on monitors went up, then it might be safer to speculate that monitors are substitutes for incarceration. But current data shows no such trends. To the extent that monitoring is used on people who would not otherwise be incarcerated, it offers no real benefit or discount to those people.
It is also almost never as simple as comparing one day on a monitor to one day behind bars. People often cycle between incarceration and monitoring and experiencing both, not one or the other for comparable amounts of time. And in some places, people are subject to lifetime GPS monitoring even after their criminal court sentence is over. The ‘but-for’ reasoning also assumes only two options: incarceration or surveillance. Yet this false binary ignores freedom, which is a third option. While lawyers representing individuals in the criminal and immigration systems must argue for their client’s stated interest (including electronic monitoring for someone who is detained), judges and policymakers are not similarly limited. They can always prioritize releasing people free of an electronic monitor, and free of other significant restrictions on their liberty.
Myth 3: To deny people the choice to be on a GPS monitor is to deny them freedom.
A related assumption concerns freedom of choice. Even if the choice is between two imperfect alternatives (monitoring versus incarceration), the existence of the choice nonetheless allows people to exercise self-determination. To remove people’s ability to choose monitoring, the argument goes, is to remove their ability to choose freedom.
This reasoning leverages the ideology of individual choice to justify subordination. To freely choose is not the same thing as freedom, especially when the choices are different shades of oppression. As Professor Michelle Alexander has put it: “If you asked slaves if they would rather live with their families and raise their own children, albeit subject to ‘whites only signs,’ legal discrimination and Jim Crow segregation, they’d almost certainly say: I’ll take Jim Crow.” Similarly, she continues, “if you ask people in prison whether they’d rather live with their families and raise their children, albeit with nearly constant digital surveillance and monitoring, they’d almost certainly say: I’ll take the electronic monitor.” Simply giving someone a choice between two forms of deprivation does not make their exercise of free will unproblematic.
Moreover, the focus on personal choice shifts responsibility for restraints on a person’s liberty from the state to the individual. When a person chooses monitoring, their consent is a “golden ticket” for the state and a form of “moral magic,” because the responsibility for having “chosen” monitoring lies with the individual, not courts or agencies. Presumed consent allows system actors to avoid addressing the reality that monitoring (with all its inherent liberty, dignity, and privacy restrictions) may not offer people much benefit for the bargain. In many respects, consent does the “dirty work” within the legal system. When there is no other legal basis for state action, or limitations on people’s rights, consent plugs the doctrinal hole, and in doing so, sanctions the continued subordination of historically marginalized groups. As other scholars have exposed, the criminal procedure jurisprudence of choice and autonomy allows courts to disclaim “state responsibility for both the underlying conditions that trigger assertions of choice as well as the lethal consequences of choice.”
The deployment of individual choice to rationalize subordination is not new. In early modern England the “fictions of consent and the myth of benevolence” made various forms of service and “slavery both possible and palpable.” This dynamic continued in the United States. Both before and after the signing of the Emancipation Proclamation, for example, consent and free will were routinely relied on to justify servitude and debt peonage. Now, as then, individual choice “legitimizes activities that would otherwise be illegitimate, immoral, or illegal.” In the context of electronic monitoring, the rhetoric of choice hides from view otherwise unconstitutional restraints, and the extent to which monitoring exacerbates inequities endemic to the legal system.
Myth 4: Monitoring is less expensive and more effective than incarceration.
Here too, research suggests otherwise. First, while monitoring may be less expensive than incarceration for the government, the same cannot be said of individuals. In the criminal legal system, the primary economic costs are shifted to those most unable to pay: the people on the monitors. In some places, people are forced to pay up to $400 a month (not including initial set up fees, which can also be hundreds of dollars) and failure to pay may result in reincarceration. There are also collateral economic costs, including electric bills (so the ankle monitors remain charged), phone bills (to communicate with the monitoring agency), and transportation and care for family members (because of restrictions on movement), to say nothing of the challenges of finding and maintaining employment while on a monitor. As a matter of political economy, this cost-shifting regime is a win-win for austerity politicians eager to cut government expenses without giving up the ability to supervise and surveille people.
Second, there is little empirical evidence that monitoring, as compared to less invasive forms of support, leads to fewer arrests, fewer missed court dates, or greater public safety. In fact, the restrictions, stress, and stigma associated with monitoring—as well as the new pathway to incarceration created by technical violations—directly undermines people’s ability to lead productive and stable lives. Indeed, justifying monitoring as “effective” begs the question: more effective at what? If the stated purpose of monitoring is to expand the carceral state into people’s homes and private lives, then it is in fact effective. But if the stated goal is something else, then it is far from obvious that monitoring is serving those goals.
***
Not only does the “better-than-prison” thinking obscure these myths, but it stunts our collective imagination about how to best support people’s ability to survive and thrive. Better-than-prison is a low bar, and certainly we can and should do better than justifying policies on that ground alone. Better than prison can still be worse than justice and is by no means better than freedom.
