Don’t swap money bail for digital jails
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Kate Weisburd
Alicia Virani
Illinois has made history. With the implementation of The Pretrial Fairness Act on Monday, it is the first state to fully eliminate cash bond. This means that no one will be held in jail simply because they cannot afford to pay for their freedom. But this historic win for pretrial freedom is in jeopardy.
State court judges and a newly created agency — the Office of State Pretrial Services (OSPS) — are primed to replace the freedom provided for in the Pretrial Fairness Act with GPS-equipped electronic ankle monitoring (EM), a technology that has no proven track record and causes more harm than good. At the end of August, OSPS rolled out plans to substantially expand the use of monitoring in Illinois, setting the state up to have the largest number of people on monitors in the United States. Illinois faces a choice: remain a beacon of hope for pretrial justice reform or provide another example of a failed attempt at change.
To pre-ordain the expanded use of ankle monitors is a mistake. As researchers who study the use of electronic monitoring throughout the United States, we are concerned. No research shows that EM leads to better outcomes as compared to people being released without a monitor. The evidence from the pretrial EM program in Cook County, one of the largest and most rigorously studied in the United States, is unequivocal: Placing a person on an electronic monitor does not impact their likelihood of committing more crimes or make it more likely they will show up to court.
Instead, research shows that EM, particularly when combined with house arrest, directly undermines a person’s stability when it is needed most. In addition to 24/7 location tracking, the rules associated with monitoring and house arrest make it difficult for people to seek or sustain work, keep their housing, visit relatives, attend church, meet with their lawyers, respond to medical emergencies or care for their children, to name just a few examples. Although not confined to a jail cell, monitoring, like jail, limits privacy, restricts liberty and disrupts family and financial security. The Pretrial Fairness Act provides some guaranteed movement for people on monitors, but it is not enough to ensure people can easily care for themselves and others.
The technology is also faulty. The monitors, which are meant to track and record people’s movement in real-time, have a history of producing false alerts. In Cook County, one report noted that 80% of alerts from monitors were “false positives.” These alerts erroneously placed a person away from their home when they were not. These technological “glitches” often led to rearrest for alleged violation of the rules, leading to more incarceration, the very thing the new law is supposed to decrease.
In a recent interview, an OSPS representative said they are “not encouraging” judges to order electronic monitoring once the new law goes into effect. But by providing widespread access to flawed and ineffective technology, the agency is creating a self-fulling prophecy. California offers a cautionary lesson. After the state’s bail practices were reformed, the number of people on monitors pretrial in Los Angeles increased dramatically and there was no net decrease in the pretrial jail population. San Francisco saw similar trends, raising concerns that monitoring is being used too much.
To be clear, under the new law, judges are required to release people who are deemed not a safety risk and not likely to flee. This means that most people released under the new law do not need monitoring because they are neither a safety or flight risk. Most people released pretrial are successful without any added conditions, and the most effective services a court can provide are simple, non-punitive ones: court reminders, transportation to court, child care assistance, and referrals to voluntary community-based services.
People on pretrial release need support, not surveillance. The state is poised to spend hundreds of thousands of taxpayer dollars on monitors. These funds would be better spent on mental health services, jobs, affordable housing, and effective treatment for substance use. Rather than incarcerate people in their own homes, Illinois should work to improve people’s quality of life and support their social and economic security.
The Pretrial Fairness Act is a model for other states seeking to eliminate the broken cash bail system. Yet by swapping cash bail for electronic monitoring, Illinois courts and the OSPS risk undermining years of progress and reform.Kate Weisburd is an associate professor of law at George Washington University School of Law. Alicia Virani is the Rosaline and Arthur Gilbert Foundation director of the Criminal Justice Program at UCLA Law School.
