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The Appeal Podcast Episode 12: When Electronic Cages Replace Steel and Cement

With journalist Kira Lerner.

A human hand with an RFID microchip implanted between the thumb and forefinger.Getty Images

As prison reform efforts begin to reduce the number of people behind bars, electronic monitoring is becoming a popular “alternative” to incarceration. Our guest, Appeal contributor Kira Lerner, talks about the moral hazards presented by this approach and why it’s important that prison reform efforts expand beyond cement walls to address house arrest and monitoring technologies.

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Adam Johnson: Hi, welcome to The Appeal Podcast. This is a show on criminal justice reform, abolition and everything in between. Remember you can follow us on social media, Twitter @TheAppealPod or follow us on Facebook at The Appeal’s main page or you can always subscribe to us on iTunes. As prison reform efforts start to have a measurable effect on how many people end up in prison an increased reliance on electronic monitoring serves for many as a kind of pseudo solution to keep people out of cement and steel cages by putting them into electronic ones. Our guest today Appeal contributor, Kira Lerner, talks about the moral hazards presented by this approach and why it’s important that prison reform efforts include electronic monitoring as well as traditional prisons.

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Kira Lerner: Electronic Monitoring is disproportionately used on people of color and it also transfers the costs from the local government to the people wearing the monitoring device. People are forced to pay anywhere from $3 to $35 a day to be tracked by a monitoring device and as we know, for people trying to get back on their feet or people trying to make ends meet while they await trial, that money adds up and it’s quite significant.

[End Clip]

Adam: Thank you so much for joining us Kira.

Kira Lerner: Thank you for having me.

Adam: So, um, you wrote a nice breakdown of something that we think of sort, if you look at criminal justice reform is a two sided coin, on one side you have actual incarceration and the other side you have surveillance and monitoring. There’s a lot of talk about the incarceration aspect and rightfully so, but there is very little attention, I think, paid to the other aspect of it which we’ll sort of describe as the oppressive nature of electric monitoring. You wrote about the kind of vanguard of this right now, which is some scattered efforts, albeit not very successful, to take the electronic monitoring to its logical ends and introduce GPS microchips. Can you talk about the case that you wrote about that talks about this and its implications and to the kind of broader reliance, and I would argue, over reliance on electric monitoring as a quote unquote “alternative” to incarceration?

Kira Lerner: Sure. Well, I came across this story because I saw some local news reports about a city councilman in Toledo, Ohio who proposed during a council meeting earlier this summer, that instead of renewing a contract for electronic monitoring services for the city, Councilman Rob Ludeman suggested that maybe instead of just electronically monitoring pretrial detainees with something like ankle monitors or other methods that are more commonly used, he said that why don’t we try as a city implanting GPS devices into our pretrial detainees. He said he’d seen a TV show of some kind where an offender was able to slip out of his ankle monitor, commit a crime, and then put the ankle monitor back on before he was caught by officers. And he said that we should be experimenting and he compared it to something like red light cameras, which he claimed he first saw on a TV show and suggested that maybe this is the way that electronic monitoring should be going. But like you mentioned, this is a one off. I did not find a lot of lawmakers across the country that are considering putting GPS implants into people awaiting trial. As you probably think, and as a lot of other lawmakers would think, that’s just viscerally disturbing. The thought of implanting something into someone who hasn’t even been convicted of a crime. But advocates I talked to did make the comparison that while that might be far fetched the way that we are electronically monitoring pretrial detainees is not that different. Um, no, we’re not putting anything into their bodies, but by putting monitors on them and confining them to what they called electronic cages, we’re essentially moving them out of physical barriers like jails and putting them inside electronic cages and they wanted to highlight that this can be just as problematic.

Adam: If you really stop and think about it it’s a bit of a distinction without much of a difference. There is a visceral component to it. And of course I think the, the GPS implant story has a kind of paranoid fervor to it that gets people’s attention. You know, ‘I don’t want to be Alex Jones here, but Illuminati,’ no, um, I think that the difference is not as significant as people think. And I know that from people in the electronic monitoring reform or I guess abolition movement, they really try to convey what it really means to be on electronic monitoring because it seems kind of benign, sort of like house arrest. It seems benign. But really when you get into what it’s like on the day to day basis, it’s not that much different than being in prison and there’s a bit of a moral hazard, I think from the activist perspective, where because it seems kind of sanitized and it seems kind of benign, that people are more likely to use it, that as electric monitoring becomes cheaper, easier, more sophisticated, that judges will say, okay, we’ll just put them on electric monitoring as a kind of default position and that as these cash bail reform efforts take a stronger hold, that this will kind of serve as a kind of pseudo reform and that that’s and that’s the risk. You talked to one of activists in particular, James Kilgore, who’s been working on this for several years and he himself was under electric monitoring. Can you talk about that moral hazard and what activists are trying to sort of convey to otherwise good faith reformist types?

Kira Lerner: Yeah. What I think is important to keep in mind is that a lot of activists and advocates and people inside the criminal justice reform movement do understand all of the issues that are presented with electronic monitoring, like you said, but I think for the general public, if you compare putting an ankle monitor on someone and letting them stay in their home for most of the day rather than keeping them in jail, it sounds preferable. So it’s an easy argument for lawmakers or other politicians to make, that we’re saving money, we’re emptying out our overcrowded jails and we’re doing a service to these pretrial detainees by letting them just wear some kind of electronic monitoring device. I did talk to a lot of advocates that really want to highlight how that’s not the case. James Kilgore spent a year on an ankle, he likes to call it an ankle monitor, not an ankle bracelet because he doesn’t want this compared to a piece of jewelry and he spent a year confined to his home on house arrest. He had to check in multiple times a day. Um, and he said it was really dehumanizing and disturbing to him. He felt like he was always being watched. You couldn’t really shake the idea that it wasn’t possible for someone to listen in, even though they told him that nobody was listening to him through this device. He said when he got into bed at night, it felt like his parole officer was under the covers with him. At one point his elderly mother got sick and he couldn’t take her to the hospital. He had to make that last minute call whether it was worth violating his parole and leaving his home to take his mother to the hospital. So he, this experience prompted him to look more critically at electronic monitoring. And since his experience with the justice system, he’s become an advocate and he’s launched a group called Challenging E-carceration that’s trying to raise awareness of all of these problems. Um, though he is a white man, he’s trying to make people aware of the fact that electronic monitoring is disproportionately used on people of color. Like I said, it also transfers the costs from the local government to the people wearing the monitoring device. People are forced to pay anywhere from $3 to $35 a day to be tracked by a monitoring device and as we know, for people trying to get back on their feet or people trying to make ends meet while they await trial, that money adds up and it’s quite significant.

Adam: Yeah, so this is a great segue to my next question, which has to do with something which is kind of the unseen labor of women, specifically black women in the criminal legal system and how house monitoring and home arrest and the electric monitoring as it increases, that increasingly what the state is doing is just offsetting it’s labor onto women, specifically black women. When you’re in house arrest, you can’t really work, um, you can’t leave the house, you can’t really do a lot of chores around the house and this increasingly falls on the feet of black women are effectively doing previously what the state had done, but with no compensation or support network.

Kira Lerner: This is a whole other issue that I didn’t even really have a chance to get into in the piece, but something else Kilgore mentioned to me is just how difficult it is to parent or to be a mother while you’re on electronic monitoring. Um, a lot of the women and black women who are forced to wear these devices might be caring for children at the same time and if their child runs into the street and they’re not able to chase after them, that poses a problem or if they get a call from the school that their kid is sick and needs to be picked up and they’re not able to leave their home, that can be another problem. So there’s a whole host of issues raised by confining someone to this electronic cage as they call it. And I think those issues are only amplified for women, for mothers, for people of color.

Adam: So you found that there was an increase in the amount of electric monitoring from 2005 to 2015. You found a 140 percent increase and that there were more than 125,000 people that were currently using these devices. Is this a trend that activists see going up and is there any data that has shown that electric monitoring is used, for lack of a better word, more promiscuously because of its seemingly innocuous nature?

Kira Lerner: I think that’s exactly the case. The Pew study found that in a one decade period, the use of these monitoring devices went up 140 percent, uh, there were over a 125,000 people being monitored with these devices by 2015, which is a huge number when you think about how this is a fairly new phenomenon. We didn’t have the technology, we weren’t using devices like this a few decades ago and I think there’s an awareness among criminal justice advocates and other activists in this field that these devices are being used as an option when prosecutors and law enforcement officers are trying to find a solution to real problems in the justice system. We know all of the issues with cash bail. We know the issues presented when jails become so overcrowded that cities don’t even have beds to put new pretrial detainees into. And I think it’s very easy to push them on off and give them a monitoring device and say, ‘Here, come back, follow the conditions of your release, um, and we’ll deal with this issue when you have to come back for trial.’ But studies show that if you do release someone awaiting trial on their own recognizance, um, all it takes is just a simple reminder of a court date when someone has to come back for a court appearance to get them to show up. It really doesn’t take conditions as extreme as a monitor around their leg.

Adam: The framing of the issue is really interesting to me because when I was at South by Southwest five years ago and there was this panel that sounded really lofty and liberal and it was about a world without prisons. And then you look closely at the fine print and you actually show up to the, to the panel and it’s basically about all the technologies emerging around electronic monitoring. One crude analogy that we use, if you take a tiger and you put it in a cage and then you put the cage inside the zoo and then you open the cage um you’re still inside of the zoo. You’re still inside of this sort of cyber zoo, this kind of electronic zoo, what I’ve read from you, your piece and from other pieces of sort of how people perceive it, they perceive it as being an electronic cage. To what extent is that something that activists are trying to get people to internalize? You mentioned that they’re using different language, they’re saying ‘ankle monitor’ not ‘ankle bracelet.’ How does one use language and use metaphor to sort of convey what’s really at stake here because the warm and fuzzy nature of it I think really is a major barrier to getting people to care about this issue?

Kira Lerner: Exactly, and I think what activists are trying to do is to make us think more fundamentally about what is the definition of imprisoning someone and what does that look like? Is it just putting them in a room with steel bars and shutting the door or is imprisoning someone defined as shutting them off from the rest of the world in any other way? And to these people I talked to, including people who have spent time on electric monitoring, it’s really no different to be confined to their home. Um, it might be a little bit more comfortable than a jail cell, but really at the end of the day they are confined. Language on this issue is really important. And I think while the example in Toledo, that we talked about earlier, uh, putting GPS devices, implanting them into detainees, while that’s disturbing on so many levels, I think activists are, not grateful, but they think of this as an opportunity to, this is, is getting the public’s attention in a way that ankle monitors do not. And I think for that reason, they’re excited to use this to start a conversation about all of the ways that wearing some kind of electronic monitoring device is no different than having an underneath your skin.

Adam: Um, you talk about the user fees. I want to get into that real quick because I find this to be, I feel like a lot of these draconian criminal legal issues are never, there’s always some other element of punitiveness and pettiness. And so in this case they actually charge the people who have the electric monitoring for the electric monitoring. Can we talk about the burden that that places on people and what that looks like in terms of kind of being an extra form of punishment?

Kira Lerner: Yeah. Well there’s so many issues presented with those user fees. Uh, the first being that if you are convicted of a crime and offered by prosecutors either you spend X amount of time in prison or you get to go home with an ankle monitor and this will be the fee associated, I think that most people would choose going home with an ankle monitor without giving much thought to the fees. Um, I think the fees and how that will impact their life comes later, which is justifiable. They don’t want to spend time in a jail. But then when it comes down to living day to day and spending anywhere from $3 to $35 on these devices, that really adds up. I mean, this is money that these people, um, a majority of these people do not have, um, as we know, the justice system disproportionately impacts low income people of color. And I think for people who are trying to move on from whatever this one offense might be, um, I think having to pay that day in and day out is really a burden that we need to think about more critically.

Adam: So Mr. Kilgore, uh, one of the kind of leading advocates in this case, we discussed earlier, his project has created a list, a set of guidelines and it’s a set of guidelines that has been signed off on by a lot of other, uh, privacy organizations such as the EFF [Electronic Frontier Foundation] and others. Can we talk about the set of guidelines and what the baseline demands are from people who are trying to reform this practice?

Kira Lerner: Yeah. So these guidelines are trying to raise awareness of all of these issues that we’ve discussed and they’re trying to make the case that the default should always be just releasing an offender on their own recognizance. Kilgore and his project claim that a judge or a prosecutor needs to make a really compelling argument about why an offender is either a danger to his or her community or is a risk to flee and not show up for an court appearance or won’t show up to court on their own before they assign them to electronic monitoring. Um, and I spoke with privacy advocates who said that it really needs to be that the judge finds a compelling argument and release should be the first option considered. And it shouldn’t be up to a detainee to prove that he or she will show up. It should be the other way around.

Adam: Yeah. It seems like so many of these sort of seemingly radical fringe proposals rest on the totally nutty idea that one is innocent until proven guilty.

Kira Lerner: Yeah. I think we need to keep in mind that a lot of the people we’re talking about here are pretrial, they are awaiting trial on their conviction. So yes, these people are innocent until proven guilty.

Adam: Yeah. I mean and to the extent to which they are, they are quote unquote “guilty.” They, they, they’ve already served time. This is kind of an add on thing to monitor them. So it seems like there’s a lot of privacy advocates, a lot of people who are looking at this in terms of not, you know, five years but twenty, thirty years. I’m like the EFF and some of the literature they’ve written, they really view this as being hugely slippery slope to something akin to expanding the net of monitoring wide enough to where a significant chunk of the population, specifically, I would imagine, disproportionately African American and Latino, are always sort of under monitoring, but they’re kind of in a permanent state of monitoring. Um, can you talk about some of the more longterm kind of dystopian implications of this or is that, is that something that people are trying to kind of downplay so they don’t come off as being paranoid?

Kira Lerner:  It’s something that’s being mentioned a bit and I think this example in Toledo of implanting a GPS tracking device is just an example of the slippery slope and this is kind of the next logical step when we are tracking people with GPS devices on their body. And as technology improves and as private corporations move more and more towards experimenting with implanting their employees, if their employees agree to implementation of a GPS device, I think it really is the next logical step that ‘Well, why don’t we experiment with other methods of tracking these pretrial detainees?’ And I think the privacy implications are even greater when there’s not consent to a device underneath your skin. And I think that we’ve seen the increase in the use of these devices over the last decade and I think there’s a wide recognition among activists that we’re only going to continue using them at this caliber, if not even more intensely, if we don’t raise greater awareness about the problems.

Adam: So one thing we like to do on the show before we go is to talk about what the next steps are moving forward and what the organizations are doing and what the current, if there’s any kind of current legislation or um, or efforts to curb or, or provide guidelines for this. Can you talk about what the kind of current state of the activist community is around this specific topic?

Kira Lerner: Unfortunately a lot of the activism is really in the early stages when it comes to electronic monitoring. A lot of the work is being done by advocacy groups and criminal justice advocates and it hasn’t really reached the level where lawmakers are considering curbing their use of electronic monitoring. But I would encourage everyone to check out James Kilgore’s project which is called Challenging E-carceration, which is a coalition of a lot of the privacy and justice organizations that are working on this issue. Um, and they have a website where they share their guidelines and, um, all of the points that they’re trying to raise when it comes to this issue. I think within the next few years it’s likely that we will see this activism take the form of legislation and move from just advocacy organizations into the more mainstream, um, but a lot of the activists I did talk to kind of highlighted the fact that this is really early and we don’t really have a wide conversation yet about the problems and until we get to that point, we’re not really going to see the type of change that they’re looking for.

Adam: Yeah. So everyone check out the Challenging E-carceration project out of the University of Illinois. So thank you so much for coming on. That was really super informative. I look forward to monitoring, for lack of a better term, this space moving forward because I think there’s a lot of interesting stuff going on and I am curious to check back in with this and when we do, we’ll definitely hit you up.

Kira Lerner: Yeah, it should be very interesting. Thank you again for having me.

Adam: Thanks so much. That was Kira Lerner, contributor to The Appeal. Remember, you can follow us on social media @TheAppealPod on Twitter and subscribe to us on iTunes. I’m your host Adam Johnson. The Appeal is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn, executive producer Sarah Leonard. Thanks so much for joining us.