New York’s governor, Andrew Cuomo, just announced a bail-reform program. Details were not yet available at press time, but it’s clear that Cuomo intends to release thousands of arrested persons, even suspected felons, without bail.
Meanwhile, across the Hudson, New Jersey has already launched its bail-reform plan. It replaces money bail with an algorithm that scores recently arrested defendants on dangerousness plus the likelihood of their appearance at court hearings. In the first three months of operation, three-quarters of the state’s defendants were released. After six months, New Jersey’s non-sentenced jail population declined 20 percent and was 35 percent lower than it had been two years earlier.
That’s good for the defendants, who don’t have to spend time in jail in the event that they’re unable to make bail. But is it safe for the public? As with virtually every other criminal-justice reform, these experiments increase public risk. Any reform that keeps parolees, probationers, or pretrial defendants out of jail or prison, either by making their sentences shorter or by replacing incarceration with release to the community, is risky.
Unfortunately, the risk is significant. Nationwide, one in three released pretrial defendants fails to comply with the requirements of discharge. They don’t show up for court proceedings (23 percent), or they get arrested for another crime (17 percent). Maybe an algorithm can reduce these failures. Maybe not.
With parolees, the risks are even greater. These are people who have served time in prison, and many of them are dangerous. Two-thirds are rearrested within three years of release. The most recent data, for 2015, reveal that more than 340,000 probationers and parolees failed to comply with the requirements of release in a single year and as a result were reincarcerated.
Nevertheless, release to the community is unavoidable. Among defendants convicted of a felony, 31 percent are sentenced to probation or some other conditional discharge instead of prison. Eight of ten felons serving time in prison are released to parole before they complete their sentences.
The real-world choice, then, is not between unconditional freedom and confinement of all offenders for life. It is between release with adequate safeguards and release without them. But current safeguards are inadequate. Probation and parole officers, overwhelmed by massive caseloads, can’t closely monitor all of their charges. And given the reformist trend, we are likely to see even more releases. So what can we do?
The answer is right in your smartphone or on your car dashboard. The latest GPS technology can be used — and is already being used worldwide — to track the whereabouts of offenders. We should expand electronic monitoring (EM) of prisoners released to parole, offenders sentenced to probation, and arrested persons not yet adjudicated (pretrial defendants) as much as is feasible and affordable. With ramped-up EM, we get the best of both worlds: additional crime deterrence and reduced incarceration. It’s a win-win proposition.
EM is built around GPS, the Global Positioning System, familiar to millions of drivers, for whom it provides traffic and location information. This proven tracking technology is widely used by government, industry, and private citizens and is already applied to offenders in Europe. GPS is powered by about 31 Earth-orbiting satellites launched and operated by the U.S. Air Force. These satellites emit radio signals that travel to Earth at the speed of light. The signals indicate the exact location of the satellite and the precise time of the transmission, determined by an onboard atomic clock.
Once a GPS receiving device picks up signals from at least three satellites, geometry-based software calculates (by triangulation) the location of the device in latitude and longitude. With four satellite signals, the device can determine the precise time of the transmission. Location and time data for a person wearing or carrying the receiver can be transmitted to a remote site, such as a monitoring service, and synched with street maps that enable the monitors to determine the exact city, street, and even house number of the subject. With continuous signals, monitors can track the movement and speed of the target. Location information is accurate within 16 feet; with augmentation systems, it can be accurate within centimeters.
Here’s how tracking would work in the criminal-justice context. Parolees, probationers, and released pretrial defendants would be required to wear a GPS-enabled ankle or wrist bracelet. Deterrence comes from the subject’s awareness that he is being monitored: He knows that they know where he is at all times.
Probation and parole officers will be able to track the subject in three different ways. First, by demarcating certain no-go areas — geofenced exclusion zones — the device can alert authorities when the subject has physically entered a prohibited location. So, for example, a sexual-assault victim’s residence or workplace could be rendered electronically off limits to the subject. If he enters the geofenced location, the GPS tracker will transmit his location and the time of entry.
Second, geofenced inclusion zones, such as a drug-treatment clinic or a place of employment, can be created to ensure that the subject meets his obligations. He can receive audible reminders from the GPS device, which contains software programmed to serve the particular requirements of each subject. The software will “know” where and when the person is supposed to go — and the device will announce this. He then will be able to check in on arrival, perhaps at a kiosk in the facility.
The third way in which monitoring can be used is through daily tracking of the subject’s location. Since GPS reveals the movement of the person along with time information, the authorities can geomap crimes in an area over a given period, daily perhaps, and determine whether the subject was at or near a particular crime scene at the time of the offense.
This technology is already being utilized to monitor offenders throughout the United States. A Pew survey in 2015 found that the use of electronic tracking devices by criminal-justice agencies rose nearly 140 percent in ten years and that more than 125,000 people were electronically monitored. But given that more than 4.6 million people were in community supervision at the end of 2015, this is a drop in the bucket.
For a country virtually wedded to technology, the U.S. has a surprisingly small commitment to EM. Sweden, France, Germany, the U.K., and Canada have more-aggressive EM policies.
There is no question that expanded monitoring will be more expensive than release arrangements without EM. Expansion will require the purchase or lease of many GPS devices along with the additional costs of maintaining them. Parole and probation officers won’t have the time to monitor the transmissions, so this activity will have to be outsourced, probably to a private company similar to a home-burglar-alarm business. Special software may have to be developed and supported. A Florida study sponsored by the U.S. Justice Department, covering the years 2001 to 2007, found that EM cost $3,274 per year per offender.
As usage increases, however, savings of scale should reduce outlays. In addition, if monitoring is successful, it will keep offenders out of jail and prison and thereby reduce incarceration costs. These reductions could easily offset the added costs of EM. In the Florida study, for instance, confinement cost $20,108 per inmate per year — more than six times the annual expense for EM.
How long would a subject have to be monitored? This would depend on his criminal-justice status. For a released pretrial defendant, tracking would end when he showed up for all of his court hearings, culminating with his trial or, more typically, his plea hearing. The median time between arrest and adjudication in such circumstances is 127 days. For probationers, who have been convicted and sentenced to conditional release instead of jail or prison, the monitoring would terminate when the probation period expired, usually after one to three years. The tracking of parolees would continue for the duration of the unserved portion of the sentence, which would depend on the length of the sentence and the proportion spent in prison at the time of parole. Recent data indicate that parolees would face about two years of monitoring on average, with an extra seven months for violent offenders.
Civil libertarians undoubtedly will object to governmental monitoring, but with regard to criminal-justice subjects, their objections may not be persuasive. To be sure, 24/7 monitoring is intrusive, and the thought that government agents could potentially determine the location of a person at any time, day or night, is unsettling. On the other hand, EM will disclose only the location of the subject, not his activities. One also must bear in mind that EM is a pathway out of confinement, which is a far greater intrusion. And if we balance the imposition caused by tracking against the need to protect the public from crimes by people who are demonstrated offenders, the needle swings strongly in favor of EM.
The principal legal challenge to electronic monitoring is likely to be a Fourth Amendment claim that it amounts to an illegal search and seizure. This is going to be a hard sell for the civil libertarians, especially in typical parole or probation cases, where the tracking will last for only a few years, or with pretrial defendants, who probably will be monitored for less than five months. These criminal-justice subjects already are under numerous stringent restrictions that pass Fourth Amendment muster, and a year or two of location monitoring is likely to be viewed by the courts as just one more acceptable imposition.
Electronic monitoring is the future of criminal-justice reform. It provides a compromise between public safety through incarceration on the one hand and public risk through release on the other. It will enable us to free more people at risk of committing crime while providing additional assurance for the general public. It won’t be cheap to operate, but it will cost a lot less than jails or prisons. It won’t provide subjects with unrestricted freedom, but it beats incarceration hands down. (If you were facing jail or an ankle bracelet, which would you choose?) It’s not a panacea, but it’s far better than freeing proven risks on the honor system, as we currently do.