Recently, I have written a new article to replace my older article on GPS monitoring (a project long overdue, admittedly). You can find the full report at http://www.oncefallen.com/GPS.html
However, I’d like to summarize the findings from my latest report for those who want just the basic facts without reading a 24-page report with plenty of technical and legal jargon and want just the basic facts.
The concept of electronic monitoring is credited to the twin brothers Robert and Kirkland Schwitzgebel (who legally changed their last names to Gable), who developed electronic monitoring (EM) devices using surplus military tracking parts in the 1960s. The idea of using EM devices as tool for LE was not well received until the 1980s, when Arizona state district Judge Jack L. Love was inspired by a Spiderman comic where a super-villain managed to place a tracking device on Spiderman to track his every move. Love formed a pilot program in Albuquerque in 1983 with the help of Michael T. Goss of Honeywell Information Systems, but after the money ran out, turned to Boulder Industries, which had been using tracking devices on cows, to fund and promote their product. A competing inventor aware of the Albuquerque experiment marketed a similar device to Monroe County, Florida Judge Allison DeFoor, which started a pilot program in 1984, and from there, the use of EM devices proliferated. (Today, most devices are GPS systems, so today we tend to refer to them as GPS devices or “ankle bracelets”)
The Gable family never intended for the devices to be used at the levels used by law enforcement today. In a 2018 interview, Robert Gable, who had studied under famed positivist psychologist BF Skinner and taught behavioral psychology for 30 years, believes that GPS monitoring should be modified to offer positive rewards as part of a program for rehabilitation rather than merely use GPS monitoring as a punishment tool. “Gable envisions an electronic monitoring program that rewards offenders for good behavior. He likens it to gambling, which is fueled by the anticipation of unpredictable, and sometimes large, rewards. ‘Turn the corrections system into a Las Vegas,’ Gable said. But such a system, Gable argues, will be a tough sell to the public. ‘The public’s perception of sex offenders — the need for punishment, the lack of rehabilitation — they don’t like rewards being given.’ … If the public were to soften its perception of sex offenders, Gable believes his system of positive reinforcement coupled with ‘swift, certain and yet moderate’ punishment for violations could work. He proposes using today’s technology — the smartphone.”
Electronic Monitoring has been heralded as an inexpensive way to monitor registered citizens, but that is misleading. There are many hidden costs to the program as the result of the many pitfalls of the program:
1. False alarms: Ankle monitor technology is similar to cell phones and are prone to errors from certain weather conditions, atmospheric interference, solar storms, tall buildings, mountains, being indoors, software mapping issues, standing in certain places (like nearby towers or near places with conflicting electronic signals), and faulty devices. False alarms lead to increased usage of resources.
2. Lack of manpower: Ironically, the devices themselves are relatively inexpensive, leading to an increased use of the devices, which in turn overwhelms manpower and financial resources needed to properly track those on the program. Since so many alarms turn out to be false, resources are wasted on what amounts to investigating no violations of supervision.
3. Impact on those forced to wear the monitors: There are many ways in which EM devices cause harm to those forced to wear the devices, including socio-economic, psychological, and physical, which in turn increases demand of resources from the government welfare and health care systems. Because EM devices are associated with people convicted of sexual offenses, these effects extend to anyone on EM devices in general.
a. Socio-economic: The stigma attached to EM devices interfere with the ability to find a job or be out in public; even among those able to find employment, the constant need to be recharged and the constant need to step outdoors for the devices to recalibrate the signal leads to decreased productivity, which in turn leads to termination of employment; those on EM have found it hard to make friends.
b. Psychological: The stigma attached to the EM devices have affected the home lives of those wearing the devices, as one study found 43% reported stress in marriage due to the devices; those on EM are often denied the right to travel or be a part of family celebrations; daily routines and even short-distance travel must be scheduled around device recharges; even college kids wearing EM devices for a college term paper reported elevated levels of fear, shame, and discomfort from reactions of the public while wearing the devices.
c. Physical: The devices are never removed, causing skin irritation from friction and heat; studies on lab rats have suggested that continuous exposure to RF waves (as given off by EM devices) could cause cancer and alter glucose levels in the body; EM devices interfere with MRIs, mammograms, X-Rays and CT scans, yet most states lack any rules or regulations for removing EM devices in cases of emergencies.
Direct cost-benefit analyses suggest that reports of GPS monitoring are grossly exaggerated by the private businesses that sell them. Many states try to force registrants to pay the full cost of electronic monitoring, but since the stigma of the “sex offender” label is exacerbated with the stigma of wearing an ankle bracelet, few registrants can pay the costs. If they go back to jail for being unable to pay, the taxpayers foot the bill. But if the state pays for the EM device fees, the taxpayers still foot the bill. In South Carolina, taxpayer paid 99% of the cost of the state’s EM program. The question as to whether EM tracking actually makes the public safer has not been answered; the scant research on this subject included small numbers and the results have been inconclusive at best.
In addition, since all EM devices come from private corporations, potentials for abuse are great. At least one GPS monitor line had been found to include a phone which could listen in on conversation, even privileged communications. Another company attempted to market a device that could allow average citizens to detect when anyone wearing a GPS monitor was I the area; this device could have increased vigilante attacks for anyone wearing the devices. Private EM companies have also harassed registrants for payments for their devices.
There are a number of legal arguments left to be made on the constitutionality of lengthy electronic monitoring, but SCOTUS considers EM to be a form of search (.Grady v. North Carolina, 135 S. Ct. 1368 (2015)). The current legal trend has been to weigh whether or not EM usage laws are allowed because the subject has a “diminished expectation of privacy” and meets a “special needs” exception on a case-by-case basis. Lower courts so far have split on the trend though more court rulings have been favorable to registrants (See State v Grady, No. COA17-12 (NC App Ct, 15 May 2018) and Park v. State, S18A1211 (Ga. Mar. 4, 2019)) than have not (People v. Hallak, 873 N.W.2d 811 (Mich. Ct. App. 2015) and Belleau v. Wall, 811 F.3d 929 (7th Cir. 2016)).
The terrible decisions of the courts in Hallack and Belleau relied upon the typical myths of high recidivism and unique threats posed by registrants as well as invoking victim trauma as justification for diminishing the privacy rights of registered citizens. However, Grady II and the recent Park v State of GA decisions rejected the justifications upheld by the Hallack and Belleau decisions for those not on probation/ parole.
However, the Courts have yet to fully consider the level of intrusiveness posed by the physical restraints created by ankle bracelets. The 2018 Grady case declared the noise of the devices and the need to charge the devices for 2 hours a day were merely “inconveniences” rather than intrusive. Perhaps this could be remedied by presenting the myriad of health issues presented in this report.
It is very important for attorneys in future cases to recognize that those fighting in favor of electronic monitoring will argue that people convicted by sex crimes have a “diminished expectation of privacy” and pose a unique threat to society even when not on supervision. most courts have agreed that subjecting registered persons to lengthy registration periods is punitive in nature and overly intrusive, and because it is punitive in nature, it should be declared as a sanction before imposed by a court. As part of a state-sanctioned GPS program, people not on supervision could argue that GPS monitoring acts like parole.
The bottom line is Electronic Monitoring has become synonymous with people listed on the public sex offense registry, causing rational discussions on efficacy and constitutionality to be largely ignored. Private businesses have used Predator Panic to promote yet another bottle of snake oil to the public, and the public happily buys it. We must continue to question the continued use of such programs when we consider the reasons for continuing the practice of electronic monitoring unabated.
Derek W. Logue, Reform Advocate
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