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Debt Trapped

The growth of electronic monitoring has spawned a quagmire of hidden fines and fees from which people need a way out.

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In 2015, more than 125,000 people were on some form of electronic monitoring. Early data suggests its use has only expanded since the beginning of the COVID-19 pandemic and as many decarceral reform efforts have been implemented. But as these technologies have proliferated, their economic consequences often get overlooked. Tim Curry and Tanisha Pierrette have studied these consequences in their work as researchers at the Fines and Fees Justice Center, an organization working to end the imposition of unjust fines and fees in the criminal legal system. Last month, the center released a report surveying the scope and impact of electronic monitoring fees in each of the 50 states. In this narrative essay, edited and condensed for clarity from a Zoom conversation with Premal Dharia on September 28, 2022, Curry and Pierrette share how electronic monitoring fees have become one of the costliest, least transparent, and most difficult-to-quantify penalties imposed on people caught up in the criminal legal system.

Electronic monitoring fees are a quagmire. But let’s start with the basics: A fee is a tax, or an economic penalty, that a court imposes on a person, either to fund the legal system or some other type of government project. And electronic monitoring is any type of technology that monitors a person’s location or behavior. It can take a lot of different forms. The most common is called GPS tracking, and it tells the court or some other agency where a person is at any point in time. Then there’s radio frequency monitoring, which is more like an invisible fence: It lets a person see whether you’re in a given area, and when you’ve left it. There’s also monitoring that is alcohol-based, which includes everything from SCRAM, a system that tests sweat on your ankle or your arm to gauge whether you’re consuming alcohol, to home breathalyzer tests.

For each type of monitoring, there’s different rules, different regulations, and different private-public interactions. All of these can vary, not just from state to state, but from county to county — so understanding what’s authorized, who sets the fees, who collects them, and who pays them quickly begins to feel like a black hole.

Over the last few years, there have been significant reforms to the criminal legal system, with an emphasis on decarceration, or reducing the number of people in jails and prisons. But that has often come with an attendant increase in electronic supervision: From 2005 to 2015, the number of people on electronic monitors increased by nearly 140%, from 53,000 to over 125,000. That’s one reason this is a really important conversation for us to be having now. We need to understand that just because someone is no longer incarcerated does not mean they are free from restrictions, or the fines and fees that come with them. In fact, we’ve even seen that some of the same private companies that run prisons and probation departments are moving to electronic monitoring. They’re doing that now because they want to “fix” some of their losses from decarceration.

Like with everything in our criminal legal system, the imposition of electronic monitoring disproportionately impacts Black and brown people and poor people. In Cook County, Illinois, Black people comprise 24% of the population, but make up 67% of the people wearing monitors. We’ll talk more about the devastating impacts of electronic monitoring and other fees on poor people later, but it’s important to understand at the outset that poor people are more likely to be in a position to be impacted by the criminal legal system: Adults living in poverty are three times more likely to be arrested than those who are not, and people with incomes below 150% of the federal poverty level are 15 times more likely to be charged with a felony.

In some places, courts run their own electronic monitoring programs. They either contract with an organization to get the monitors and run their own supervision, or they make a contract with a private company. Sometimes, police departments or departments of correction can oversee the electronic monitoring program and get to decide whether to outsource it.

Many people have the idea that courts closely administer the supervision of people and handle the monitoring of their probation or release conditions. But when jurisdictions outsource monitoring, they often outsource everything. It’s the supervision, it’s the monitoring, and — sometimes — it’s even the probation service itself. One of the most shocking things we found is that this is wholly unregulated. Many of the private companies set their own fees, with little or no guidance, control, or oversight. As a result, the charges that people have to pay are often hidden. They’re not just hidden from you and me. They’re hidden from legislators and the courts. People know that they get a bill every month, but the reasons aren’t always clear. What they certainly learn fast, however, is when these private companies are unhappy with their ability to keep up with payments, because they will often notify courts and subject people to reviews. That means that their pretrial or post-trial status can be changed — not because of a purported public safety issue, but because of a financial one.

Constitutionally speaking, you cannot have your pretrial release revoked or have your probation or parole revoked because you cannot pay a fine or fee — that’s what the Supreme Court said in Bearden v. Georgia. But the way these systems are created, courts and probation departments and private electronic monitoring companies don’t talk about issues of payment. They talk about terms of compliance and your obligations under probation or parole. And with the resulting incarceration there’s plausible deniability as to whether it’s financially based or not. To make matters worse, there’s often little investigation by courts into whether a person has the ability to pay, even though that’s the constitutional threshold. That’s part of what has allowed this whole unchecked, unregulated hidden-fee system to spawn, one that is ripe for predatory practices and abuse.

Our legal system is supposed to improve public safety and support communities equitably. But what we’re doing right now is charging a litany of fees to individuals at every point in the system — for electronic monitoring, probation, prosecution, defense, and much more. So, only those who are drawn into the system — disproportionately from communities of color and disproportionately lower-income earners — are the ones being held responsible for paying for the system that we all are supposed to benefit from. That’s part of the insidiousness of this entire fee regime.

Now, some people will point out that some statutes use the term “reasonable fee” and that legislatures expect the courts to determine what that means. But this opens up a whole host of different questions: Reasonable for whom? And are we talking about a reasonable fee for the electronic monitoring unit? For supervision? What about late fees? Or processing fees? Or installation fees? Those are all part of the equation. And remember: It’s often up to the for-profit companies to decide what they think they should charge, and their goal is to make money. So if they keep you on under supervision, they make more money. In other words, they have a vested interest in keeping you under electronic monitoring and reporting you to courts for “non-compliance,” even when it’s just financial.

Like everything in the criminal legal system, racial disparities and income disparities are rampant with electronic monitoring. And these disparities deepen inequality, because if a person is a low-wage earner, they have even less of an ability to pay these expensive fees. Just consider some data from the Federal Reserve, which puts out a study every year called the “Survey of Household Economics and Decisionmaking.” In it, they ask a question: What would happen if you got an unexpected $400 expense in the next month? Last year, 24% of Americans said they would be unable to pay, or would have difficulty paying, an unexpected fine, fee, or bill of $400. When you look just at the people who are making less than $25,000 a year, that figure doubles to 50% of people saying they would be unable to meet an unexpected $400 bill without hardship.

When we started looking at the county level, where many of these prices are actually fixed, we found that the number of communities charging more than $400 a month for electronic monitoring was staggering, especially because 60% of people on probation make less than $20,000 a year. These fees become a huge proportion of their income, so much so that they’re unable to take care of their families, pay their bills, or cover their basic necessities. In one county in Illinois, people were being charging $400 a week for electronic monitoring fees. That’s more than the average rental price for a four-bedroom house in that area.

A lot of people have started to recognize what a serious problem this is and are trying to change things. California has made some significant reforms to eliminate a wide range of fees — and electronic monitoring was part of a package of legislation that the state passed in 2020. When the sections of the code were changed initially, it looked like they got rid of these fees. But there was some language in one of the statutes that left it ambiguous whether private companies could continue to charge. And that meant that in some jurisdictions, there were still charges being levied. This past summer, lawmakers passed a cleanup bill, and California became the first state to prohibit all electronic monitoring fees.

California’s situation underscores how much transparency and oversight remains an issue, even in places that are trying to address these issues head on. It also speaks to something else we found doing research for our report: Quite often, actors in different parts of the criminal legal system don’t understand what others are charging or why. When a county or a court district or whomever is doing the contracting gets a directive, there are often no guidelines, except for government procurement, which is basically all about billing — who’s going to provide this service for the lowest cost. And what you see in a lot of these jurisdictions is the private company will say to the government, We will provide this service to you for free. You don’t have to worry about the money. They can say that because they redirect the costs and draw profits from the system-involved people sent to them by the state.

As the movement away from incarceration to community release continues to play out, companies are going to keep shifting their model. They will say, You’re not paying us to lock people up anymore, so now you need to pay us to create all the surveillance within which people who are released have to live. Some of the firms that are vying for electronic monitoring contracts are quite transparent about this. We cite two examples in the report, one from West Virginia and one from Virginia. In West Virginia, a company said, “We’re going to save the state this amount of money per year per person, because you’re not going to be incarcerating them. You don’t have to pay that in prison or jail costs — instead, we will supervise them for you. They will be in the community, and you won’t have to pay for anything. Oh, and by the way, we’re going to charge them for everything — so it’s a complete savings for the state.”

The example in Virginia was even starker. In Fairfax County, local officials decided to move people from incarceration into a work-release program, which saved the county about $600,000 in 2019. The sheriff’s department also admitted that same year that they earned $60,000 in fees from the people placed in work release. So the county saved $600,000, over half a million dollars, and the sheriff’s department in that county that was overseeing the release program made $60,000 off the backs of the people in the program.

The legal system is supposed to be built on fairness and equity, but with fines and fees like those attached to electronic monitoring, there’s a shocking nonchalance. It runs from legislators to governors to departments of corrections to courts to everyday people. And the attitude is that somebody has to pay for all this, and we don’t really care how much it costs as long as somebody other than the government is footing the bill. At every stage, fees are thrown at people, so it’s really important to bring light to the issue and build coalitions to end it.

That’s why later this week the Fines and Fees Justice Center is launching the national End Justice Fees campaign in partnership with the American Civil Liberties Union, Americans for Prosperity, and a broad bipartisan coalition. The goal is to provide advocates and policymakers with tools and resources to push for the elimination of all fees in the criminal legal system and discharge debt, whether it’s for electronic monitoring, for using a public defender, for extra fees tacked on to a traffic ticket, or for fees connected to the juvenile system. This report on electronic monitoring is part of that bigger project, which is built upon an understanding that fees are an inequitable and ineffective way of funding our state and local governments. The hope is that the more information we share with people about what is really happening in criminal systems and courthouses around the country, the more people will understand the need for change.

Image: Fines and Fees Justice Center