Over the past decade, the immigration and criminal legal systems have increasingly relied on electronic monitoring as a bail condition; hundreds of thousands of people live under this monitoring on any given day. Decisionmakers purport to impose these conditions to release more individuals from detention and to maintain control over individuals they perceive to pose some risk of flight or to public safety. But the data do not show that electronic monitoring successfully mitigates these risks or that it leads to fewer individuals in detention. Electronic monitoring also comes with severe restrictions on individual liberty and leads to harmful effects on individuals’ economic stability, relationships with family and their community, and physical and mental health.
Pretrial electronic monitoring should be severely limited if decisionmakers follow the inquiries required by the Eighth Amendment, Due Process Clause, and state law and require the government to prove that the bail condition is the least restrictive condition that could mitigate the risks of flight and to public safety. This Article examines those standards in depth and observes that electronic monitoring provides an opportunity to clarify some of the uncertainty that has surrounded these inquiries when previously applied primarily in the context of monetary bail.
Sara Zampierin, Mass E-Carceration: Electronic Monitoring as a Bail Condition, 2023 ULR 589 (2023). DOI: https://doi.org/10.26054/0d-w007-rc01