Electronic Monitoring: A Means to the Continuation of the Commodification of American Bodies that Exists under the Current American Criminal Justice System
Written by: Reginald Streater, ’18
Electronic Monitoring (EM) may enable those who would have otherwise been incarcerated to have higher levels of treatment or services for problems such as substance abuse, low education levels, and unemployment for the convicted, but policy discussions for or against the expansion of EM should be grounded in the context of what the criminal justice system has become today—a tool that some have taken advantage of to feed the prison industrial complex with predominately black and brown bodies…
Electronic Monitoring, (EM) has become a tool used by the criminal justice system as an alternative for probation or incarceration.[1] EM may enable those who would have otherwise been incarcerated to have access to “higher levels of treatment or services for problems such as substance abuse, low education levels, and unemployment” for the convicted.[2] If true, EM could be an invaluable tool used to further the utilitarian goal of rehabilitation. Although less time spent incarcerated may be a net benefit, being labeled a criminal may have deleterious collateral consequences on an innocent or guilty criminally convicted individual’s ability to pursue life, liberty, and happiness—especially as it relates to African and Hispanic American men who are disproportionately convicted of crimes more so than their white counterparts.[3]
EM was not intended to be used as tool of the criminal justice system, but “as an adjunct to psychotherapy and to enhance accountability.”[4] The technology behind EM has evolved considerably since its creation in the 1960s.[5] In particular, the use of electronic offender-tracking devices has increased substantially in recent years.[6] For example, as of 2016, approximately more than 125,000 individuals were monitored by electronic devices.[7] This is an increase from approximately 53,000 in the year 2005.[8] Advances in global positioning system (GPS) technology has led to a marked increase in EM use,[9] and is currently being used in all fifty states and the District of Columbia to track the movements of pretrial defendants, convicted offenders, or those on probation or parole.[10] Ankle bracelets are the preferred mode of EM.[11]
Policy discussions for or against the expansion of EM should be grounded in the context of what the criminal justice system has become today—a tool that some have taken advantage of to feed the prison industrial complex with predominately black and brown bodies.[12] A major event in the creation of the modern criminal justice system, was the ratification of the Thirteenth Amendment.[13] According the Thirteenth Amendment, “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”[14] Although this amendment effectively ended the institution of explicit forms of chattel slavery in America,[15] it put into place a vehicle that could be used to further some of the ends that it was created to abolish.[16] Perhaps the largest end that has survived is its sanctioning of the commodification of human bodies for economic gain.[17]
One would be hard pressed to ignore the significant role that the racialization of politics has had on the criminal justice system—especially as it relates to inner city drug and crime policies.[18] Investing in the private prison industrial complex has been lucrative for some,[19] and those who benefit often lobby against substantive criminal justice reform because doing so would cut the supply of the human capital necessary to warrant the cost of mass incarceration.[20] However, issues like the suburban drug epidemic[21] and the substantial cost Americans bear to incarcerate over 2.2 million individuals[22] have made criminal justice reform a bipartisan issue.[23] As public and political interests shift away from the traditional brick and mortar prison industrial complex, EM can either be the gateway to a more just system or just another vehicle used to commodify human bodies for economic gain. For example, in 2016, stocks in two of the largest private prison companies, GEO Group and the Corrections Corporation of America (CCA), fell after President Barrack Obama’s Department of Justice “announced…that it will stop renewing its contracts with private companies to operate federal prisons.”[24] As the momentum for bipartisan criminal justice reform intensifies,[25] GEO and CCA have begun to diversify the companies’ investment portfolios to include “alternatives to incarceration” initiatives.[26] This is in spite of continuing to receive contracts from state governments[27] and federal agencies for private prisons.[28] Specifically, as it relates to EM, of the $2.23 billion spent purchasing smaller companies in recent years GEO and CCA have spent over $680 million on companies[29] that fall under the umbrella of the Treatment Industrial Complex.[30] GEO has been enthused and believes its shift to investing in EM and community based rehabilitation programs is “in line with current criminal justice reform discussions.”[31] To that end, as of 2016, one of GEO’s EM division monitors more than 100,000 individuals using GPS.[32] Thus, as criminal justice reform continues to make political and economic sense, it appears that the commodification of individuals in America’s current prison industrial complex, will continue under the growing treatment industrial complex—which is poised to be monopolized by the same actors who benefit from the current criminal justice system.
The commodification of human bodies has already begun. Today, the cost of EM GPS monitoring is often passed on to the person ordered to wear it. For example Richland County, South Carolina requires those ordered to wear ankle bracelets to pay Offender Management Services (OMS) “about $300 per month, plus a $179.50 set up fee.”[33] In fact, if one cannot make their payment to the private for-profit company, OMS must contact the police, and the individual is returned back to the custody of the police.[34] Often these individuals are economically depressed, and the added cost puts a strain on their ability to be full participants in the economy.[35] Markedly, most pre-incarcerated offenders come from economically depressed backgrounds. As of 2014, pre-incarcerated individuals between 27-42 years of age, had a median annual income of $19,185—which is 41% lower than those who would not become incarcerated.[36] What these numbers illustrate is that the American criminal justice system “send[s] large numbers of people with low levels of education and low skills to prison”[37] and when released they are expected to find gainful employment in spite of the fact that employers may discriminate against them.[38] Also, as of 2014, only two jurisdictions, the District of Colombia and Hawaii, do not compel individuals to pay fees toward EM.[39] Understanding that high monitoring fees can be a burden on the convicted, some jurisdiction have created a sliding scale,[40] while other jurisdictions have shifted more of the cost to offenders.[41] Thus, consumers of the criminal justice system already carry the economic burden, and shifting EM fees onto them can further subjugate them into economic depression—while enriching non-state actors like the private prison corporations such as CCA and GEO.
Ultimately, this paper is not meant to advocate for the complete repudiation of EM as a state tool for criminal justice reform. It is meant to highlight that if EM is being promoted as a tool to end mass incarceration, it should do so—no matter the form it takes. As discussed above, the arc of history as it pertains to the criminal justice system and the prison industrial complex has changed overtime but continues to aid in the commodification of American bodies. Although an expanded use of this technology could have both socioeconomic and crime reduction benefits,[42] without addressing the deleterious effects of having a criminal record in American[43] EM could propel the problematic portions of the criminal justice system well into the twenty-first century.
[1] See generally, Nathan James, The Federal Prison Population Buildup: Options for Congress, Cong. Research Serv., (May 20, 2016), https://fas.org/sgp/crs/misc/R42937.pdf.
[2] Id. at 8.
[3] For example, a 2013 study showed that Black and Hispanic men with criminal records are less likely to receive callback interviews; however, white men with no criminal record were less likely to positive responses to their resumes than Black men who did not have criminal records. Scott H. Decker et. al., Criminal Stigma Race, Gender, and Employment: An expanded Assessment of the Consequences of Imprisonment for Employment 48-50, 66-67 (2013), https://www.ncjrs.gov/pdffiles1/nij/grants/244756.pdf.
[4] Marc Renzema & Evan Mayo-Wilson, Can Electronic Monitoring Reduce Crime for Moderate High-Risk Offenders, 1 J. Experimental Criminology 215, 216 (2005),
http://citeseerx.psu.edu.viewdoc/download?doi=10.1.1.513.2221&rep=rep1&type=pdf.
[5] As of 1997, Global Positioning System (“GPS”) began to be the preferred technology for EM because it allows the state to monitor individuals “in real-time.” Id. at 217.
[6] The Pew Charitable Trusts, Use of Electronic Offender-Tracing Devices Expands Sharply: Number of Monitored Individuals More Than Doubled in 10 Years 1 (Sept. 2016), http://www.pewtrusts.org/~/media/assets/2016/10/use_of_electronic_offender_tracking_devices_expands_sharply.pdf.
[7] Id. at 1.
[8] Id.
[9] Id. at 3.
[10] Id. at 1.
[11] Id. at 2.
[12] Although race is not explicitly highlighted throughout this paper, it influences the analysis below, because of the demographical makeup of the incarcerated, and the historic intersection of race and the law. See Athena D. Mutua, The Rise, Development and Future Directions of Critical Race Theory and Related Scholarship, 84 Denv. U.L. Rev. 329, 353-56 (2006); see also, Derrick Bell, Race, Racism, and American Law 115-35 (5th ed. 2004).
[13] See Andrew E. Taslitz, The Slave Power Undead, Criminal Justice Successes and Failures of the Thirteenth Amendment, in The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment 245, 248 (Alexander Tsesis ed., 2010) (noting that the Thirteenth Amendment’s “duly convicted’ of crime [language] proved to be a significant loophole, which would permit the creation of an incarceration system free to commoditize individuals, and recreate many “aspects of [chattel] slavery”).
[14] U.S. Const. amend. XIII, § 1 (emphasis added).
[15] Yes, the Thirteenth Amendment ended express forms of slavery which include chattel slavery, but it legalized the criminalization of conduct that may be specifically associated with a specific class of individuals—leading to the over-policing targeted groups. See, e.g., Ira Glasser, American Drug Laws: The New Jim Crow, 63 Alb. L. Rev. 703, 707 (2000) (analogizing the state-sponsored war on drugs to a “war [of] hysteria [which] has become an engine for the restoration of Jim Crow justice in” America).
[16] For example, after the abolition of the enslavement of Africans in America, some southern jurisdictions took part in the economic racket of what is known as peonage. See, e.g., Douglas A. Blackmon, Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II 118–54 (2008).
[17] See Heather Long, Private Prison Stocks Up 100% Since Trump’s Win, CNN Money (Feb. 24, 2017, 2:07PM), http://money.cnn.com/2017/02/24/investing/private-prison-stocks-soar-trump/index.html (discussing how Trump’s law and order policies, and support for private prisons “thrilled” investors, and caused stocks to rise); see also Walter Pavlo, Pennsylvania Judge Gers ‘Life Sentence’ for Prison Kickback Scheme, Forbes (Aug. 12, 2011, 7:58AM), https://www.forbes.com/sites/walterpavlo/2011/08/12/pennsylvania-judge-gets-life-sentence-for-prison-kickback-scheme/#6ff79a244aef.
[18] See Fanna Gama, The Racial Politics of Protection: A Critical Race Examination of Police Militarization, 104 Cal. L. Rev. 979, 988-89 (2016) (discussing the historical correlation between the creation, maintenance, and the purpose of the police as a tool of oppression of “othered” demographics; which reinforced institutionalized racism and racial hierarchies in America); see also Chenjerai Kumanyika, Policing the “War in Black bodies, 43.1 C. Literature, 252, 254-55 (2016).
[19] See e.g., George Joseph, The Private Prison Industry’s New Criminal Justice Ventures, City Lab (Sept. 14, 2016), https://www.citylab.com/equity/2016/09/the-private-prison-industrys-new-criminal-justice-ventures/499964/ (discussing that “private prison companies [have] diversified their [ . . . investment] portfolios” in spite of knowledge that government contracts will continue); see also Sarah Stillman, Get Out of Jail, Inc., the New Yorker, (June 23, 2014), https://www.newyorker.com/magazine/2014/06/23/get-out-of-jail-inc (discussing how private investment firms are acquiring electronic-monitoring firms).
[20] See, e.g., Mike Elk & Bob Sloan, The Hidden History of ALEC and Prison Labor, Nation (Aug. 1, 2011), https://www.thenation.com/article/hidden-history-alec-and-prison-labor/.
[21] The substantial adverse cost of drug activity to suburban and rural enclaves has shown those who once thought the drug problem was just an urban problem is actually one that affects all Americans. See e.g., German Lopez, When a Drug Epidemic’s Victims are White, Vox (Apr. 4, 2017), https://www.vox.com/identities/2017/4/4/15098746/opioid-heroin-epidemic-race.
[22]The Facts: Criminal Justice Facts, The Sentencing Project (last visited Oct. 28, 2017) http://www.sentencingproject.org/criminal-justice-facts/.
[23] See e.g., Katherine Q. Seelye, In Heroin Crisis, White Families Seek Gentler War on Drugs, N.Y. Times (Oct. 30, 2015), https://www.nytimes.com/2015/10/31/us/heroin-war-on-drugs-parents.html.
[24] Dora Lind & Dylan Matthews, Vox Sentences: The Federal Government Will (Eventually) Close (a Handful of) Private Prisons, Vox (Aug. 18, 2016, 8:00PM), https://www.vox.com/2016/8/18/12545974/vox-sentences-private-prisons-close. See Joseph, supra note 19. (discussing that GEO and CCA shares dropped by 40% and collectively $2.2 billion in value after DOJ announced it would eventually close some private prisons).
[25] See Seung Min Kim, Senators Unveil Bipartisan Criminal Justice Reform Package, Politico (Oct. 4, 2017, 3:10PM), https://www.politico.com/story/2017/10/04/senate-bipartisan-bill-criminal-justice-reform-243455 (reporting bipartisan effort and unveiling of criminal justice reform package by Senators with a focus on “easing sentences for some non-violent offenders, such as for drug crimes, while beefing up other tough-on-crime laws.”).
[26] See Hanna Kozlowska, Private Prison Companies in the US Lost More Than $2 Billion in Value—and Counting, Quartz (Aug. 30. 2016), https://qz.com/770155/private-prison-companies-in-the-us-lost-more-than-2-billion-in-value-and-counting/.
[27] See The GEO Groups’s (GEO) CEO George Zoley on Q1 2016 Results – Earnings Call Transcript, Seeking Alpha 1 (April 28, 2016) [hereinafter GEO Earnings Call], https://seekingalpha.com/article/3969107-geo-groups-geo-ceo-george-zoley-q1-2016-results-earnings-call-transcript.
[28] See Daniel Rivero, Why the Federal Government’s Use of Private Prisons is Far from Over, Splinter (Aug. 18, 2016, 4:47PM), https://splinternews.com/why-the-federal-governments-use-of-private-prisons-is-f-1793861280 (reporting how ICE prisons will expand as the current detention centers will not be enough hold immigrants, thus leading to more private prisons).
[29] The Public Interests, GEO Group and Corrections Corporation of America Spend Billions of Taxpayer Dollars Purchasing Smaller Companies 1-2, tables 1, 2 (Sept. 2016), https://www.inthepublicinterest.org/wp-content/uploads/ITPI_PrivatePrisonsMnA_FactSheet_Sept2016.pdf.
[30] The term “Treatment Industrial Complex” refers to the phenomena in which private actors are pushing an agenda that transforms the for-profit prison industry into a revenue center in which “community corrections” is the focus of criminal justice in America. Caroline Isaacs, Treatment Industrial Complex: How For-Profit Prison Corporations are Undermining Efforts to Treat and Rehabilitate Prisoners for Corporate Gain, Grassroots Leadership (Nov. 2014), https://grassrootsleadership.org/sites/default/files/reports/TIC_report_online.pdf.
[31] See Joseph, supra note 19 (internal quotation marks omitted).
[32] See Geo Earnings Call, supra note 27, at 4.
[33] Eric Markowitz, Chain Gain 2.0: If You Can’t Afford this GPS Ankle Bracelet, You Get Thrown in Jail, Int’l Bus. Times (Sept. 21, 2015, 7:55AM), http://www.ibtimes.com/chain-gang-20-if-you-cant-afford-gps-ankle-bracelet-you-get-thrown-jail-2065283.
[34] Id.
[35] See id. (detailing how Antonio Green could not maintain the fees owed to OMS, which led him to turn himself in because he ran out of money).
[36] When comparing pre-incarcerated individuals intra-racially and by gender, the incarcerated still made substantially less than their non-incarcerated counterparts. Bernadette Rabuy & Daniel Kopf, Prisons of Poverty: Uncovering the Pre-Incarceration incomes of the Imprisoned, Prison Pol’y Initiative (July 9, 2015), https://www.prisonpolicy.org/reports/income.html. Black men made 44% less, Black women made 42% less, Hispanic men made 34% less, Hispanic Women made 21% less, white men made 54% less, and white women made 41% less than their non-incarcerated counterparts. Id. at fig. 2.
[37] Id.
[38] See generally, Decker et. al., supra note 3.
[39] State-by-State Court Fees, National Public Radio (May 19, 2014), https://www.npr.org/2014/05/19/312455680/state-by-state-court-fees.
[40] The Allegheny P.A. Adult Probation EM fee schedule is a tiered sliding scale based on income. Order of the Court, 42 Pa.B. 3436 (Jun. 16, 2012), https://www.pabulletin.com/secure/data/vol42/42-24/1076.html. For example, individuals at level 1 ($19,999 and under) pay $5 a day plus $2 for those under GPS tracking—which translates to about $2,555 a year. Id. However, all offenders must pay an initial $100 initial installation fees. Id.
[41] For example, Florida has rolled back exemptions for those who cannot afford to pay fees—which include EM fees. Rebekah Diller, The Hidden Costs of Florida’s Criminal Justice Fees, 7-8, Brennan Center for Justice (2010), https://www.brennancenter.org/sites/default/files/legacy/Justice/FloridaF&F.pdf.
[42] An increase in EM use could save taxpayers $8.7 billion per year, and society would gain, in net societal value, $25.81 for every dollar spent on EM for felony probationers and parolees. Stuart S. Yeh, The Electronic Monitoring Paradigm: A Proposal for Transforming Criminal Justice in the USA, 4 Laws 60, 66 (2015). Potentially, under Yeh’s proposal, with approximately 781,383 crimes averted annually, this policy could bring a marked drop in the types of crimes typically committed by probationers and parolees. See id. at 66 table 1.
[43] See, e.g., Eric Markowitz, Chain Gain 2.0: If You Can’t Afford this GPS Ankle Bracelet, You Get Thrown in Jail, Int’l Bus. Times (Sept. 21, 2015), http://www.ibtimes.com/chain-gang-20-if-you-cant-afford-gps-ankle-bracelet-you-get-thrown-jail-2065283; see also, e.g., Simone Ispa-Landa & Charles E. Loeffler, Indefinite Punishment and the Criminal Record: Stigma Reports Among Expungement-Seekers in Illinois, 54 Criminology 387, 389-90 (2016) (discussing the deleterious effects that a criminal record can have on the convicted).