Pretrial Detention and the Right to Be Monitored

By Wiseman, Samuel R. | The Yale Law Journal, March 2014 | Go to article overview

Pretrial Detention and the Right to Be Monitored


Wiseman, Samuel R., The Yale Law Journal


ESSAY CONTENTS INTRODUCTION I. FLIGHT RISK, PRETRIAL DETENTION, AND THE NEED FOR ALTERNATIVES    TO MONEY BAIL    A. The Burdens of Pretrial Detention       1. The Criminogenic and Plea-Inducing Effects of Pretrial          Detention       2. Financial Harm to Defendants and Their Families       3. The Tax Burden    B. The Problems with Money Bail       1. Wealth Discrimination       2. Direct Financial Burdens on Defendants and Their Families    C. Not Worth the Cost: The Ineffectiveness of Money Bail    D. Traditional Alternatives to Money Bail II. ELECTRONIC MONITORING AS AN ALTERNATIVE    A. Technologies and Implementation    B. Effectiveness    C. Cost    D. Privacy and Net-Widening    E. Inequality III. THE RIGHT TO BE MONITORED    A. An Eighth Amendment Right to Be Monitored       1. Current Eighth Amendment Doctrine       2. Text, History, and Purpose       3. Applying Intermediate Scrutiny    B. Statutory Approaches IV. THE CASE FOR JUDICIAL INTERVENTION    A. Public and Private Interests in Pretrial Release    B. An Imperfect Judicial Solution CONCLUSION 

INTRODUCTION

Innocent or not, roughly half a million people in the United States are in jail awaiting the resolution of the charges against them at any given time. (1) Some of these defendants are dangerous, but a significant number are charged with nonviolent offenses and simply cannot afford relatively modest bonds imposed to assure their presence at future court appearances; roughly thirty percent of state court defendants assigned bonds of less than $5,000 are detained. (2) They cannot work during the often considerable time that they spend in jail (3)--leaving any children and other dependents to fend for themselves--and their jobs may not be waiting for them when they get out. (4) Apart from the often devastating impact of pretrial detention on defendants and their families, the Attorney General has estimated that the annual cost to taxpayers is nine billion dollars. (5) Nor is the bail system outstandingly effective: roughly fifteen percent of defendants released on commercial bonds fail to make at least one court appearance. (6) Responding to these problems, both the Conference of Chief Judges and the Conference of State Court Administrators have recently called for the use of more accurate pretrial assessments of dangerousness and flight risk, and for the release of non-dangerous defendants. (7)

Although rising detention rates and shrinking governmental budgets have recently brought these issues wider attention, their basic contours have not changed for decades. (8) With the rapid advance of computing technology, however, the available solutions have changed a great deal. Increasingly sophisticated remote monitoring devices have the potential to sharply reduce the need for flight-based pretrial detention. In a world in which scientists can monitor and recapture wolves, (9) snakes, (10) and even manatees (11) in the wild, and

AT&T Wireless offers family-member tracking for $10/month, (12) the question of finding other ways of ensuring a non--dangerous defendant's presence at trial is one not of ability, but of will--albeit a difficult one. By reducing jail populations, these technologies can lower overall costs--it costs at least four times as much to jail a defendant as it does to monitor him (13)--and, while invasive, are vastly preferable to a jail cell for most defendants.

Among bail reform advocates, however, monitoring has relatively few vocal proponents, perhaps due to understandable, but (I will argue) probably overstated, privacy concerns. Indeed, the problems addressed in this Essay are in some respects the reverse of the usual concerns about criminal justice technology. The rapid advance of technology has been accompanied by a corresponding increase in legal scholarship concerned about its effect on the relationship between government and society. And not without reason, of course: increasingly efficient, inexpensive, and nearly invisible methods of surveillance and control have the potential to radically alter that relationship, and law and lawyers are appropriately concerned with preventing an Orwellian disaster. …

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