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

C. Cost

As the American Bar Association and other organizations have begun to emphasize the expense of pretrial detention, (135) the practical benefits of the technological alternative have become even more compelling. Increasingly computerized, they do not require the staff, medical programs, and vast security controls of pretrial detention. Monitoring programs appear to generate significant savings if used in place of pretrial detention, although some of the savings may be lost if convicted defendants are not given time-served credit for time-monitored, and thus eventually spend the same amount of time incarcerated. (136)

Pretrial services programs that combine technology with relatively inexpensive monitoring have substantially reduced the financial cost of preventing flight. Miami-Dade County cut costs from approximately $20,000 per pretrial defendant to $432 annually for released, monitored defendants, (137) and the Southern District of Iowa saved $1.7 million over one fiscal year by releasing 15% more defendants. (138) Federal active monitoring of pretrial defendants in the 1990s cost approximately $2.77 to $9.04 daily, (139) compared to daily costs of pretrial detention ranging, according to some estimates, from $50 to $123. (140) Other estimates suggest that electronic monitoring programs "[o]n average ... cost between five and twenty-five dollars per day." (141) And approximately one out of three offenders who were electronically monitored in Florida between 2001 and 2007 would have otherwise been jailed at six times the cost, according to one study, which concluded that monitoring was a "cost-effective method of dealing with offenders." (142) Similarly, results from Europe also suggest that monitoring can be far less expensive than other options if implemented properly--ensuring that monitoring is implemented in lieu of jail, thus offsetting costs. (143)

As GPS, live audiovisual monitoring, and other technologies become more common outside of the criminal world for ease of navigation and of sharing life experiences with friends and family, costs likely will continue to decline, while effectiveness will rise. Governments need not operate the programs themselves: already, multiple competing private providers exist (and one could imagine bond agents, some of whom already use tracking devices, becoming monitoring agents). (144) The cost-effectiveness of a monitoring program, of course, will depend on the details. A minimalist system, designed to track the location only of those who have already failed to appear and giving at least partial time-served credit, which is clearly more desirable from a privacy perspective, will also be more cost-effective than a more intrusive program (145) without credit. And, for better or worse, it is likely that monitoring programs will shift pretrial flight prevention costs to defendants; some defendants in pretrial release programs already pay for the cost of their own monitoring. (146) If electronic monitoring is implemented on a broader scale, more legislatures will try to recoup the costs of monitoring from indigent defendants as they have done with counsel (147) and jail costs. (148) As others have noted, this is deeply problematic, (149) but it is still preferable to detention (which defendants might also have to pay for).

Empirically, the cost savings of monitoring in lieu of detention require further detailed investigation. The goal here is not to suggest that monitoring is completely effective or costless, but rather that the available data suggest that it can be at least as cheap and effective as money bail.

D. Privacy and Net-Widening

Another, more fundamental set of reservations centers on privacy. The degree to which a monitored defendant's privacy is invaded depends on the technology employed--a device that transmits location data only on the day of a court appearance is less invasive than one that transmits constantly, and both are far less invasive than a device that transmits audio and video. …

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