For Defense Attorneys: Tips for Effectively Challenging Pretrial Electronic Monitoring

In response to the increasing use of electronic monitoring since the COVID-19 pandemic, the ACLU has released Rethinking Electronic Monitoring: A Harm Reduction Guide, which calls on jurisdictions to replace electronic monitoring with less restrictive and more effective measures.

We also spoke with individuals who have had to endure pain, stigma, and loss of livelihood because of their ankle monitoring.

Finally, we've created a resource that aims to help defense attorneys build a record in order for them to challenge the use of electronic monitoring (EM) in the form of ankle bracelets, ankle shackles, and/or tethers. This particular form of EM is a dangerous and debilitating means of confinement. Studies show that digital incarceration (e-carceration) not only intensifies racial and class-based inequalities, but also plagues wearers with charging malfunctions, and false alarms, that can lead to further criminal punishment.

To inform and empower defense attorneys and their clients, the ACLU created a list of tips and resources to help challenge the imposition of electronic monitoring. Check out these tips below:

Do they require a presumption of release on recognizance (ROR) for pretrial people in some circumstances?

Do they require a finding that ROR will not suffice before an official can impose a pretrial condition?

What is the standard for imposing pretrial conditions such as electronic monitoring? Must the pretrial condition be reasonably related to ensuring appearance or protecting public safety? If there is a standard, electronic monitoring requirements that aren’t explained or obvious from the record are suspect.

Must the official consider statutory factors in deciding whether to impose a costly pretrial condition, or, alternatively, does the government automatically cover the cost of the condition? If the statute lays out steps for determining whether to impose a cost, and how much, then officials must abide by the law.

If there is a presumption of ROR for pretrial individuals, don’t forget to argue first that ROR is the default. Second, you may want to argue that (free or low cost) pretrial conditions are superior to cash bond. Highly liberty-restrictive conditions like electronic monitoring are only appropriate upon specific findings of dangerousness or flight risk that are specifically addressed by the conditions.

You can use the following steps to challenge monitors:

1. Prove that there is no unmanageable flight risk, citing:

• Employment records;
• Child care responsibilities, school enrollment records, other evidence of local ties;
• Letters of support from family or community members; and/or
• Attendance at prior court proceedings.
• Where the underlying charges are shaky, this should be highlighted.
• If there is a previous failure to appear (FTA), make a record of sympathetic excuses for absence.

2. Prove that there is no danger to the public:

Make arguments based on the nature of the allegations. Even for violent crimes, facets of the crime may indicate likely non-recurrence (e.g., a bar fight).

Provide letters of support where family or community members address willingness to monitor defendants’ activities (although this can get tricky).

Document other life activities (helping elderly neighbors, etc.) that may prove trustworthiness.

Highlight if there is no other prior criminal history (or no violent history or no recent history).

3. Raise concerns about the imposed pretrial condition:

Argue that electronic monitoring is a highly restrictive condition and that its imposition is only appropriate to address a specifically identified flight risk or danger to the public.

If defendant cannot afford electronic monitoring, argue that its imposition amounts to a pretrial detention order in violation of Bearden v. Georgia and U.S. v. Salerno.

If the court is considering electronic monitoring and your client will be required to pay, explicitly tell the judge if the costs of monitoring will be unaffordable and thus amount to a pretrial detention order. Some statutes and/or court rules prohibit pretrial detention on the basis of economic status.

Argue that electronic monitoring constitutes an unconstitutional search under both U.S. and state constitutions. (See, e.g., Carpenter v. U.S.; U.S. v. Scott.)

Emphasize that electronic monitoring is ineffective, generates social stigma, and creates cycles of debt and incarceration.

4. Argue for pretrial release conditions other than electronic monitoring:

• Offer to have the client check in with probation by phone on a daily basis.
• Offer to have the client surrender their driver’s license in return for a temporary license (in misdemeanor cases, this may be preferred by statute).
• Offer to have family members provide reports if requested (this can be tricky).
• As a last-ditch effort, agree to electronic monitoring if client is willing, but emphasize that EM should not be at a cost to the defendant, and that they should be allowed to travel freely upon request/as much as possible.

5. Be creative and craft conditions specific to court-expressed concerns.

6. Insist on reviewing the pretrial services report and put on record if judge is departing from the report.

Contest any unfavorable factual findings in the report.

7. Motion for review as often as needed.

For example, if you first made a motion to have electronic monitoring removed six months ago, and your client is still on electronic monitoring six months later, you should request a review and/or file a new motion.