Abstract

Electronic monitoring would ideally balance the interest of the state in controlling pretrial criminal defendants with those defendants’ personal interests in maintaining a life consistent with their right to presumed innocence. Until proven guilty and incarcerated, a criminal defendant deserves to have a life substantially like that of an unaccused person, including the right to work and live in society. In theory, electronic monitoring as an alternative to pretrial detention enables a criminal defendant to continue working if and until they are sentenced and required to report to a detention institute. However, in practice, the actual statutes, policies, and case law surrounding electronic monitoring create a system that leaves pretrial defendants at home and without employment. This is particularly true when we consider the defendant’s experience from the start of electronic monitoring to beyond their final release from supervision, and the impact of their supervision on others around them.

This note will discuss the underlying historical and philosophical issues embodied in the use of electronic monitoring as a condition of pretrial release. Next, I will survey five states that collectively represent the majority approach to electronic monitoring but individually have novel or unique aspects. These states are Alaska, Massachusetts, Missouri, New Mexico, and Wisconsin. For each state, I will consider the distinctive statutes creating electronic monitoring as a condition of release and regulations, rules, or policies that govern the application and administration of electronic monitoring. I will also examine any case law or empirical studies related to that state’s pretrial conditions of release, along with anecdotal stories of real criminal defendants placed on electronic monitoring. Then, I will adopt a normative approach in determining which state has the most work-enabling electronic monitoring scheme that causes the fewest problems for the criminal defendant, the community at large, and the judicial system. Finally, this note will craft a model regulatory scheme for electronic monitoring to best meet the general goals of pretrial conditions of release—allowing defendants to maintain their residence outside of an institution and ensuring more strict state observation over a defendant of concern to the community— while also ensuring that the defendant can make the most of their employable time.

Keywords

electronic monitoring, criminal defendant employability, covid, pretrial monitoring