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pre-trial defendants

“Wearing An Ankle Bracelet Might Be Worse Than Jail Time”

MTM1MTM3NDc2NzI0NDUzMzQ2This article by Julie Morse for the Pacific Standard  summarizes some interesting research by UC Berkeley Law Professor Kate Weisburd.  She did work on the use of electronic monitoring with juveniles in California and found that in many cases it failed to save money, was extremely punitive and often landed young people back behind bars. She calls for a re-think of the legal status of EM as well. Very thought-provoking and great to see that some legal scholars are now looking at this through a lens other than recidivism.  Now we just need to deepen the dialog about the “rights of the monitored.”

Link to the article:

http://www.psmag.com/politics-and-law/wearing-an-electronic-monitoring-device-might-be-worse-than-jail-time

Link to Professor Weisbrud’s article on her research:

http://ilr.law.uiowa.edu/files/ilr.law.uiowa.edu/files/ILR_101-1_Weisburd.pdf

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Reflections on My Visit to the Confederation of European Probation, December 2014

I had the extreme pleasure of being invited to the semi-annual meeting of the European Confederation of Probation(CEP) in Frankfurt, Germany in early December. I spent three days with over 200 people from more than 30 countries who have a deep interest in electronic monitoring. While the majority of them worked in probation, there were also judges, police, researchers, government officials and entrepreneurs. In addition, I took part in the program, making a presentation about the state of electronic monitoring in the US while describing some of my own experiences on the monitor as well as the material I have gathered from interviewing other people. A copy of my presentation is posted at the CEP website.
Even though no country in Europe uses electronic monitors as frequently as the US on a per capita basis, the complexity of debate among the participants in the conference far exceeded anything I have encountered on this side of the Atlantic. Three things stood out for me.
Monitors and Human Rights-The Europeans Care
The first was that for nearly everyone there, the monitor should not be imposed without a careful consideration of the human rights implications of putting a tracking device on a person. A complex debate has taken place, particularly in Germany, over various aspects of this question. Whereas most discussion in the US focuses on mechanisms of control or recidivism impact, the Europeans recognize that monitoring someone’s location and activities is both punitive and a distinct invasion of privacy which needs to be thought about carefully before implementation. Given the German experience of both the Third Reich and the East German Stasi, it is not surprising that such matters would gain considerable attention there. In fact, at the Federal level, the German government has discouraged the use of monitors. Only one state, Hesse, (where the conference took place) has implemented monitoring and they only use it on 68 people. The human rights questions largely revolve around access to data. The Germans are concerned that data collected through monitoring can be used in criminal investigations which actually don’t meet the notion of probable cause. So, for example, in the implementation of a GPS location monitoring system local judge Silke Eilzer summarized the current wisdom in Germany: that police should not be able to examine the location of everyone on a monitor in a specific town when a crime was committed. Rather, before electronic monitoring data could be accessed at all, there would need to be probable cause that a particular person on a monitor had a link to the crime and then only that person’s data could be introduced into an investigation. Eilzer also shared concerns about how long data from EM should be kept. At present, German authorities are required to delete data after two months, a startlingly short period to most people in the audience.
Dominic Lehner, a prominent Swiss lawyer with a range of experience inside and outside the criminal justice system and a major driver of EM policy in the EU, raised an issue in response to a device that one company had produced that tracked not only location, but movement and temperature. So, for example, the device could report whether the person was lying down or standing up, if they were in a sauna or a walk-in cooler, if they were jogging in place or standing. Lehner was especially bothered by the potential for this device to record a person’s activities in the bedroom-which for him was unacceptable. Concerns for what I call the “rights of the monitored” rarely find expression in US discussions about electronic monitoring. The perspectives of Eizler and Lehner were incredibly refreshing.
Probation Officers Are Social Workers, Not Cops!!!
Second, spokespeople from every country put forward EM as a tool, not as a solution. There was no attraction to EM as a quick-fix. From the UK, where it is used the most often and where the incarceration rate is higher than most of Western Europe, a person on a monitor would always be assigned a probation officer, which in European terms means social worker. (In fact in some countries, a person has to be a trained social worker to be a probation officer.) While rehabilitation departed from most jurisdictions in the US some two decades ago, it remains at the center of the criminal justice debate and practice in Europe.
In this vein, during my presentation I noted that if I were called upon to speak to a gathering this size of probation officers in the U.S., I would be a little fearful, as many of them have assumed policing rather than supporting roles. Jaws dropped open when I told them that parole officers in some states carry guns and that they (and probation officers) may do unannounced searches of houses looking for drugs and other contraband. This CEP gathering was a collection of earnest souls, focused on getting their clients onto a positive life track, not wanna-be CSI investigators trying to catch their charges out of bounds. What a delightful change.
Third, the relationship to the technology was different. While Radio Frequency (RF) devices still exist in many places in the US, most people regard them as the EM equivalent of a flip phone-second rate technology from a bygone era. But in Europe, the limited capacity of RF (it can only tell whether a person is at home but cannot pinpoint their location once they leave the house), is seen as an advantage for many people characterized as “low risk.” The regimes of “curfew” typically allow people out of the house up to 12, even 14 hours a day, providing them with desired levels of freedom. Ultimately the devices seemed intended to keep people at home during night time, when most “trouble” happens, rather than aiming at controlling and monitoring their every move. Countries like Sweden and even the UK have not used GPS at all because of the privacy concerns about tracking someone’s moves and the massive amount of data generated which allows cataloging behavior patterns, associations, and activities which are mostly not considered the business of probation.
Vendors Trying to Grapple with Human Rights As Well
In addition to these three notions about monitoring, one of the most surprising aspects of the conference was the sponsorship and the high level presence of vendors of the technology. At first I viewed this with concern, thinking that the conference would be little more than a marketing venture. And while the companies did do their marketing, they also engaged intensely with participants about what probation officers would and would not like to see in future electronic monitoring devices. Engineer Urs Hunkeler, who is a leading force in the recent Swiss monitoring startup Geosatis, co-facilitated an incredibly stimulating workshop in which he focused on matching up the capacities of the engineering world with the needs and wants of probation officers. While like all engineers he had great enthusiasm for the capacity of the technology to capture and archive information, he also listened with an attentive ear to the human rights concerns of these end users. While public-private partnerships often contain a rather minimal influence from the public side, in this case I felt that the industry and the users were attempting to grow together to get a device that would minimize technical difficulties for the users (things like short life of batteries and losing signal) and a size and design that would represent less of stigma to many people. This quote from one of the evaluations from a company representative, echoed this perspective: “I used to say “We are one of those companies who don’t like their customers (Offenders)”, but this conference made me think beyond, at the end of the day offenders are human beings. This conference opens up a new door for me to think from their perspective. The solutions we make should be thought of their day to day practical and social impact on their way of life.”
Concerns
While the debate and overall direction were positive, there were some areas of concern. Belgium, for example, one of high per capita users of electronic monitoring on the continent, is moving to a much tighter GPS/house arrest which would make it almost impossible for those on a monitor to work a night shift job or take part in evening activities. And while the presentations were well-researched and stimulating, apart from myself, no one spoke directly from their own experience of being on a monitor. Although the local Germans require all their probation officers to wear an ankle bracelet for two or three weeks, the stigma and discomfort of the device don’t begin to equate with the institutional control and the threat of reincarceration that comes with most EM regimes, especially those in the US. The voice of the monitored and their loved ones needs a presence in such gatherings.
Lastly, no one seemed to have any startling predictions about the future of electronic monitoring, nor was there a sense of extreme urgency to move forward. Perhaps the CEP has achieved its pinnacle with the completion of a recommendation on electronic monitoring adopted by the European Union in February, 2014. The document, which hopefully will acquire some hegemony and influence implementation, carefully balances human rights, rehabilitation and public safety concerns. It has been a great influence on my own work in the US. However, as Dominic Lehner asked in the opening session, “what good is a recommendation?” The answer is obvious, not much if there is no way to ensure its implementation, and a world of good if people take its spirit into their daily work.
I did leave the conference wondering where monitoring might be heading in Europe. In a continent with an incarceration rate of less than a quarter of that of the US, (and in some countries less than 10% of the US rate) the pressure to decarcerate hasn’t reached critical mass. Nonetheless as rising trends toward austerity push governments to reduce spending on corrections, even in some of the low incarceration states in Europe, EM may gain more popularity. Poland where the Ministry of Justice has put ankle bracelets on 35,000 people in the If other countries go the way of Poland, at least any expansion will have been preceded by a serious debate around the human rights and privacy concerns that the technology raises. Sadly, no such debate has occurred at all in the US, where major research and policy focus continues to be cost-cutting, collecting meta data for recidivism studies of dubious statistical validity, and developing more effective systems of control. In the present environment, where mass incarceration has lost considerable favor in the US, a push toward EM is still a distinct possibility. If this does happen, I can only hope that it will include the kind of serious debate that has taken place in the EU and continuous gatherings of human rights oriented practitioners such as the CEP conference to make sure the bracelet does not become a high-tech version of incarceration or as an Jean-Pierre Shackelford, who spent three years on a monitor referred to it, “twenty first century slavery, electronic style.”

Wonderful Day at CEP Conference in Frankfurt

CEP logoI spent today in Frankfurt, Germany with over 200 people taking part in the Confederation of European Probation’s 9th Conference on electronic monitoring. The majority of the people in the room work with probation or are employed in some other fashion in what we would call the law enforcement side. But electronic monitoring, and for that matter law enforcement, are a little bit different in this group. First of all I was amazed to hear that the German government at the federal level has grave concerns about the human rights implications of electronic monitors. For example, they have only agreed to hold data captured via GPS for two months. That’s how concerned they are about abuse of the access to that data. Moreover, they don’t want police to be able to do something which seems simple to us in the U.S.- search the whereabouts of everyone in the city who is on electronic monitoring when a crime is committed to see if they are in the vicinity. To them this is a human rights witch hunt. They would demand probable cause, that is, evidence that person was in the vicinity of a crime, BEFORE, they would allow searching the location of all those who were on electronic monitoring. Without that, there is no probable cause, no search.  They take human rights, at least in this regard, quite seriously.

Judge Elizer: Can Judges Really Talk Like This?

Two other issues struck me today. First, Judge Silke Elizer made what was no doubt for her a fairly innocuous comment: “when I say probation officer, I mean social worker,”  speaking directly to two of her “social workers” in the audience. How long has it been since probation and parole officers were anything more than law enforcers. Have they ever been trained in counseling, in family reunification? We operate according to the punishment paradigm and social workers don’t fit in.

Dr. Lehner: A Penitentiary Man?

Then, Dr. Dominik Lehner, from the Council for Penological Cooperation, a man who has been involved in the intricacies of running penitentiaries all his life, emphasized how electronic monitoring needed regulation, that there were all kinds of threats to human rights liberty it could pose if the right guidelines were not in place. Goodness me. He could have been a prison warden but here he is going on about human rights and advocating for the EU ‘s recommendation on monitoring which is all about the rights of the monitored and making sure that people have support while on monitoring, are not just left hanging with no money, no job and an ankle bracelet. An extraordinary day-more tomorrow.

European Committee of Ministers Adopts New Recommendations on Electronic Monitoring

european_union_law-300x218On February 19, 2014, the European Union’s Committee of Ministers adopted a set of recommendations on electronic monitoring. These represent a major step forward in carving out specific rights for the monitored as well as in re-framing monitoring in a less punitive fashion. US jurisdictions have much to learn from this document. The crucial sections are pasted in below.

III. Basic principles

1. The use, as well as the types, duration and modalities of execution of electronic monitoring in the framework of the criminal justice shall be regulated by law.

2. Decisions to impose or revoke electronic monitoring shall be taken by the judiciary or allow for a judicial review.

3. Where electronic monitoring is used at the pre-trial phase special care needs to be taken not to net-widen its use.

4. The type and modalities of execution of electronic monitoring shall be proportionate in terms of duration and intrusiveness to the seriousness of the offence alleged or committed, shall take into account the individual circumstances of the suspect or offender and shall be regularly reviewed.

5. Electronic monitoring shall not be executed in a manner restricting the rights and freedoms of a suspect or an offender to a greater extent than provided for by the decision imposing it.

6. When imposing electronic monitoring and fixing its type, duration and modalities of execution account should be taken of its impact on the rights and interests of families and third parties in the place to which the suspect or offender is confined.

7. There shall be no discrimination in the imposition or execution of electronic monitoring on the grounds of gender, race, colour, nationality, language, religion, sexual orientation, political or other opinion, national or social origin, property, association with a national minority or physical or mental condition.

8. Electronic monitoring may be used as a stand-alone measure in order to ensure supervision and reduce crime over the specific period of its execution. In order to seek longer term desistance from crime it should be combined with other professional interventions and supportive measures aimed at the social reintegration of offenders.

9. Where private sector organisations are involved in the implementation of decisions imposing electronic monitoring, the responsibility for the effective treatment of the persons concerned in conformity with the relevant international ethical and professional standards shall remain with public authorities.

10. Public authorities shall ensure that all relevant information regarding private sector involvement in the delivery of electronic monitoring is transparent and shall regulate the access to it by the public.

11. Where suspects and offenders are contributing to the costs for the use of electronic monitoring, the amount of their contribution shall be proportionate to their financial situation and shall be regulated by law.

12. The handling and shared availability and use of data collected in relation to the imposition and implementation of electronic monitoring by the relevant agencies shall be specifically regulated by law.

13. Staff responsible for the implementation of decisions related to electronic monitoring shall be sufficient in number and adequately and regularly trained to carry out their duties efficiently, professionally and in accordance with the highest ethical standards. Their training shall cover data protection issues.

14. There shall be regular government inspection and avenues for independent monitoring of the agencies responsible for the execution of electronic monitoring in a manner consistent with national law.

IV. Conditions of execution of electronic monitoring at the different stages of the criminal process

1. In order to ensure compliance, different measures can be implemented in accordance with national law. In particular, the suspect’s or offender’s consent and co-operation may be sought, or dissuasive sanctions may be established.

2. The modalities of execution and level of intrusiveness of electronic monitoring at the pre-trial stage shall be proportionate to the alleged offence and shall be based on the properly assessed risk of the person absconding, interfering with the course of justice, posing a serious threat to public order or committing a new crime.

3. National law shall regulate the manner in which time spent under electronic monitoring supervision at pre-trial stage may be deducted by the court when defining the overall duration of any final sanction or measure to be served.

4. Where there is a victim protection scheme using electronic monitoring to supervise the movements of a suspect or an offender, it is essential to obtain the victim’s prior consent and every effort shall be made to ensure that the victim understands the capacities and limitations of the technology.

5. In cases where electronic monitoring relates to exclusion from, or limitation to, specific zones, efforts shall be made to ensure that such conditions of execution are not so restrictive as to prevent a reasonable quality of everyday life in the community.

6. Where substance abuse needs to be monitored, consideration shall be given to the respective intrusiveness and therapeutic and educative potential of electronic and traditional approaches when deciding which approach is to be used.

7. Electronic monitoring confining offenders to a place of residence without the right to leave it should be avoided as far as possible in order to prevent the negative effects of isolation, in case the person lives alone, and to protect the rights of third parties who may reside at the same place.

8. In order to prepare offenders for release, and depending on the type of offence and offender management programme, electronic monitoring may be used to increase the number of individual cases of short-term prison leave that are granted, or to give offenders the possibility to work outside prison or be given a placement in an open prison.

9. Electronic monitoring may be used as an alternative execution of a prison sentence, in which case its duration shall be regulated by law.

10. Electronic monitoring may be used, if needed, in case of early release from prison. In such a case, its duration shall be proportionate to the remainder of the sentence to be served.

11. If electronic monitoring is used, if needed, after the prison sentence has been served, as a post-release measure, its duration and intrusiveness shall be carefully defined, in full consideration of its overall impact on former prisoners, their families and third parties.

I. Ethical issues

1. Age, disability and other relevant specific conditions or personal circumstances of each suspect or offender shall be taken into account in deciding whether and under what modalities of execution electronic monitoring may be imposed.

2. Under no circumstances may electronic monitoring equipment be used to cause intentional physical or mental harm or suffering to a suspect or an offender.

3. Rules regarding the use of electronic monitoring shall be periodically reviewed in order to take into account the technological developments in the area so as to avoid undue intrusiveness into the private and family life of suspects, offenders and other persons affected.

I. Data protection

1. Data collected in the course of the use of electronic monitoring shall be subject to specific regulations based on the relevant international standards regarding storage, use and sharing of data.

2. Particular attention shall be paid to regulating strictly the use and sharing of such data in the framework of criminal investigations and proceedings.

3. A system of effective sanctions shall be put in place in case of careless or intentional misuse or handling of such data.

4. Private agencies providing electronic monitoring equipment or responsible for supervising persons under electronic monitoring shall be subjected to the same rules and regulations regarding handling of the data in their possession.

I. Staff

1. All relevant rules of Recommendation Rec(92)16 on the European rules on community sanctions and measures, of Recommendation Rec(97)12 on staff concerned with the implementation of sanctions and measures, of RecommendationCM/Rec(2010)1 on the Council of Europe Probation Rules and of Recommendation CM/Rec(2012)5 on the European Code of Ethics for Prison Staff, which relate to staff, shall be applicable.

 

2. Staff shall be trained to communicate sensitively with suspects and offenders, to inform them in a manner and language they understand of the use of the technology, of its impact on their private and family lives and on the consequences of its misuse.

3. Staff shall be trained to deal with victims in cases where victim support schemes are used in the framework of electronic monitoring.

4. In establishing electronic monitoring systems, consideration shall be given to the respective merits of both human and automated responses to the data gathered by the monitoring centre, bearing in mind the advantages of each.

5. Staff entrusted with the imposition or execution of electronic monitoring shall be regularly updated and trained on the handling, use and impact of the equipment on the persons concerned.

6. Staff shall be trained to install and uninstall technology and provide technical assistance and support in order to ensure the efficient and accurate functioning of the equipment.

I. Work with the public, research and evaluation

1. The general public shall be informed of the ethical and technological aspects of the use of electronic monitoring, its effectiveness, its purpose and its value as a means of restricting the liberty of suspects or offenders. Awareness shall also be raised regarding the fact that electronic monitoring cannot replace professional human intervention and support for suspects and offenders.

2. Research and independent evaluation and monitoring shall be carried out in order to help national authorities take informed decisions regarding the ethical and professional aspects of the use of electronic monitoring in the criminal process.

 

 

LA Times Reports Monitoring Devices Drowning Officials in Useless Information

The Los Angeles Times ran an article today about the large number of false alarms electronic monitoring devices are generating, inundating parole agents with more information than they can possibly process. As a result, the article concludes, some genuine alarms are going unheeded and people when people cut off bracelets to go and commit crimes. The article reiterates the typical slant on electronic monitoring-that it isn’t as comprehensive a control device as a prison cell and that it is not an absolute deterrent to crime.  Like most writing on this topic the piece fails to address three other sets of problems: 1) that in the worse case scenarios many people end up back in prison or jail for being falsely reported out of their house or in a zone from which they are “excluded;” 2) that the absurd use of exclusion zones applied to many people on monitoring due to sex offense convictions is totally inappropriate and administratively impossible to manage; 3) that the real need is for electronic monitoring to be implemented with guidelines that define the rights of people on monitoring and embrace a philosophy of restorative justice not electronic punishment.

Check out the Los Angeles Times piece here.

G4S Under Investigation for Overcharging for Electronic Monitoring in the UK

The global security firm G4S is under investigation on contracts for electronic monitoring in the UK valued at more than a billion dollars.  International auditing firm PricewaterhouseCoopers has been called into scrutinize the details of this 2005 deal, which involved G4S and another security firm, Serco. G4S is a mega-player in the industry with  an annual turnover of more than ten billion dollars and operations in 125 countries, including the US. Allegations include overcharging to an extent that according to one source, the cost of monitoring in the UK was more than ten times the figure for the US. While it is too early to determine the result in this case, the incident does remind us that electronic monitoring is big business and that global security firms like G4S (which botched the security for the 2012 London Olympics) and the US-based GEO Group view EM as a future source of enormous profits.  Untapped markets include the more than four million people on parole and probation in the US, high school students identified as disciplinary problems and undocumented workers.  Although in many minor criminal cases electronic monitoring may be a welcome relief from a jail or prison sentence, for those marketing the services future clients may more likely come from the ranks of those for whom an ankle bracelet represents an additional, profit-generating control rather than a respite from incarceration.

Ridiculous Legal Wrangles Block Electronic Monitoring In Chicago

Today the Chgregs-bracelet-11.jpgicago Tribune reports that a spat between Sheriff Thomas Dart and Chief Judge Timothy Evans has brought the release of pre-trial people on electronic monitoring to a virtual standstill. In recent years, Cook County, where Chicago is located, has run the largest pre-trial monitoring in the country-claiming that over 250,000 people have been put on monitors by local authorities.  From July 1, 2012 to November 13, 2012, the county sent about 25 people per day back onto the streets while their cases were processed. Then somewhere along the way Judge Evans changed the language of his decisions from “orders” to “recommendations” and electronic monitoring ground to a halt. The situation came to a public head in an epic TV debate between Dart and Evans. The Judge argued he was giving some discretion to the Sheriff about who was to be monitored. The Sheriff responded by saying he needed an order, not a recommendation. And so it goes.  Who is going to step in and halt this battle of egos which keeps people locked up when they should be working and with their families. Who is going to intervene and stop the already over-crowded Cook County jail from teeming with even more people who often end  up being shipped out to other jurisdictions.

One of the most effective uses of electronic monitoring is for pre-trial people. Though the rules and regulations don’t always function in a rehabilitative way, the solution is not to halt the program while the giant egos at the top battle it out. Rather let the authorities come to their senses and continue with monitoring and keep yet to be convicted people out of the horrific confines of Cook County jail.

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