This week, the Pennsylvania Supreme Court decided to weigh in on the use of cash bail in the city of Philadelphia. In March, attorneys from the American Civil Liberties Union filed a lawsuit on behalf of 10 inmates, arguing that “bail magistrates in Philadelphia’s First Judicial District have failed to consider alternatives to cash bail and have assigned cash bail to people who are too poor to afford it.”
According to the Pennsylvania Capital-Star, ACLU Executive Director Reggie Shuford said, “People who have not been convicted of a crime are sitting in Philadelphia jails only because they are too poor to pay the bail they’ve been assigned. The Philadelphia courts have effectively criminalized poverty.”
As advocates scramble to find alternatives to pretrial detention, one option may be as detrimental to the accused as incarceration.
The movement to overhaul cash bail by challenging the constitutionality of jailing defendants pretrial, has pushed judges, prosecutors and law enforcement to turn to electric monitoring as a “humane” and cost effective substitute.
Electronic monitoring is a method of supervising an accused pre-trial without housing the individual in a costly jail or prison. The defendant wears an electronic GPS monitor, housed in an ankle bracelet, permitting court or law enforcement personnel to can keep track of their movements. The monitor provides a layer of public safety that doesn’t exist when a defendant is simply walking free pending trial.
States and cities incur the brunt of the costs for jails and prison. In an effort to cut down on government expenses, more and more local policymakers are passing the financial burden of the monitoring devices onto those who wear them.
A recent investigation by ProPublica and the New York Times cited a 2014 study by NPR and the Brennan Center that found, with the exception of Hawaii, every state required defendants to pay at least part of the costs associated with electronic monitoring.
As the cost of incarceration has soared, and state and local budgets have shrunk, electronic monitoring - paid for by the accused - must have seemed like a life preserver floating in a sea of government debt.
Yet as ProPublica and the New York Times suggested, “like the system of wealth-based detention they are meant to help reform, ankle monitors often place poor people in special jeopardy.”
Many local government agencies engage private entities to operate and manage pre-trial monitoring programs. These for-profit entities often charge defendants more over time than the cost of cash bail at the outset. Private companies set their own rates and charge interest when defendants fall behind in payments. Defendants can pay with a credit card or utilize financing set up through the company and often rack up debt they can never repay.
In some jurisdictions the expanding use of electronic monitoring has outpaced court rules. Some judges do not, nor are they required to, conduct hearings on a defendant’s ability to pay for private supervision before assigning them to wear a bracelet rather than sit in jail.
It’s not only debt that can send defendants back to jail. Individuals being monitored can be punished for breaking the rules that come with the devices - things like curfew, use of alcohol or maintaining a job.
In 2011, then U.S. Attorney General Eric Holder stated that keeping people awaiting court dates in county jails costs around $9 billion a year. The urgency to address those costs and the concern that cash bail disproportionally affects the poor has created a form of “debtor’s supervision.”
Today, eight years after Holder’s admonition, policymakers risk further exacerbating the plight of the poor by forcing those merely accused of a crime to choose between financial stability and freedom.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.