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New Technology Offers Pretrial Release for Indigent Accused

JURIST Guest Columnist Leigha A. Weiss, a 3L at St. John's School of Law, discusses new technology that could help with pretrial release of the indigent defendant ...

Johnathon Sacks, a renowned British Rabbi, philosopher and scholar, said: "technology gives us power, but it does not and cannot tell us how to use that power." Electronic monitoring and supervisory programs, like house arrest, have been utilized by notable criminal defendants, such as Bernie Madoff, Paris Hilton, Michael Vick, and Dominque Strauss-Kahn, the former International Monetary Fund managing director. However, this list describes only wealthy defendants who, due to their immense wealth, posed a unique flight risk which prevented the use of bail, but were nevertheless able to pay for the privilege of pretrial release through the use of technology. Indigent defendants, who are unable to make bail, are denied these options and find themselves with no alternative but incarceration.

Despite the rise in technological advances, courts in New York State continue to use only the most onerous forms of bail in criminal proceedings, to wit: cash or fully secured bonds. These types of bail place a large financial burden on defendants in order to obtain pretrial release and disproportionately incarcerate indigent and poverty stricken people, who are unable to obtain the funds necessary to make bail. In fact, according to the Vera Institute of Justice, "money, or lack thereof, is now the most important factor in determining whether someone is held in jail pretrial."

Nationwide, approximately 62% of detained offenders are pretrial detainees awaiting trial. This is an increase of nearly 40% over the last 30 years, despite crime and arrest rates being lower. In 1985, with crime reportedly much higher than today, about half of people arrested were cited and released compared to 2012 in which 95% of people who are arrested and subsequently detained. This trend favoring arrest disproportionately affects indigent defendants and contributes to increased populations in prisons and jails nationwide. This is demonstrated by the fact that nearly 30% of state court defendants are detained on bonds of less than $5,000. This problem is exacerbated by the privation of bail services and the creation of an industry that serves as bail bondsmen. These bail practices impose a tremendous cost on taxpayers, which according to the Attorney General, the estimated annual cost nationwide of incarcerating pretrial detainees is approximately 9 billion dollars. Why should these costs to taxpayers and the detrimental effects experienced by individuals denied their liberty in the absence of a conviction be continued to be given the cost-saving options of technology, especially when they are offered to wealthy defendants who would be able to afford bail had it been considered a viable condition to release?

Implementing electronic monitoring and other forms of pretrial technology for indigent pretrial detainees would cost taxpayers far less than incarceration, benefits the indigent defendant who is able to obtain release, and reserves pretrial detention for the cases in which it is necessary. Therefore, alternatives to incarceration through supervisory programs for pretrial detainees should be implemented to benefit indigent criminal defendants. While these programs have been used intermittently in the last 30 years, recent technological advances could greatly impact the lives of indigent detainees and reduce costs for the criminal justice system while properly supervising the defendant to promote public safety. Specifically, kiosk reporting, electronic monitoring, and global positioning systems (GPS) can be used in various combinations for low-risk defendants to high-level offenders alike to obtain pretrial release.

Kiosk reporting involves offenders reporting to a machine, similar to an ATM, which uses thumb print scanning for identification followed by a photograph of the defendant and a video recording of the session. The session requires the offender to answer a series of questions concerning their release and compliance, and then implements instructions to shape the offender's behavior through a negative response, the imposition of more restrictions or requiring action like substance abuse counselling or therapy, or a positive response, the reduction or elimination of restrictions or treatments. These programs are "best used for offender accountability" as well as "treatment compliance and adding structure to offenders' lives."

Supervisory programs range from minimal restrictions, such as automated text-message reminders for court dates, mandatory curfews, and regular check-ins to more restrictive measures, like home confinement and house arrest. Home confinement generally involves mandatory time blocks of remaining in the offenders' home and typically involves the aforementioned minimal restrictions. In contrast, house arrest, which is the most extreme form of supervisory program that is employed and is typically reserved for felony or high risk offender, requires the defendant to be confined to their residence at all times and may only leave based upon certain conditions (such as work or school) or with permission (such as for medical treatment or religious observance). Most often home confinement and house arrest are employed in conjunction with electronic monitoring and GPS that monitors the offenders' location at all time. The monitoring not only ensures the defendant is not a danger to society but also provides the greatest certainty that the defendant will appear at court or for trial.

Electronic monitoring involves a continuous radio signal that is sent to the central computer, which will notify supervisors or the police department if the offender has left his home. The defendant wears a device, such as an ankle bracelet, which sends a continuous signal to the base.The equipment allows supervisors to track the defendant's location, to confirm compliance with release conditions (such as curfews), and is also equipped with technology to prevent tampering. In addition, GPS tracking allows for this continuous signal to be tracked to locate the defendant's physical location at all times. According to criminal justice specialists, electronic monitoring and GPS tracking, either through a cell phone or attached to the defendant's body, "accurately deters flight, allows fugitives to be readily located [in real time], and is much less restrictive than a curfew requirement." Thus, these technologies are not only effective of ensuring compliance but also saves the criminal justice system money while preserving the defendant's liberty, who is innocent until proven guilty.

Kalief Browder, a sixteen year old African American from Bronx County, New York, spent three years at Riker's Island Correctional Facility awaiting a trial that would never occur. As a result of Kalief's abject poverty and youth, Kalief was the victim of a criminal justice system which "uses money to determine who is detained [and] allows those who are dangerous but rich to go free." During arraignment, the judge set Kalief's bail at $3,000 because Kalief did not pose a flight risk. However, even though Kalief's family was required to pay only 10% of the bail amount, they were still unable to come up with the funds in order to obtain pretrial release for their son. Therefore, Kalief lived at Riker's for three years and became part of the indigent accused, unable to obtain pretrial release due solely to their poverty. In 2013, Kalief was released from Riker's after the charges against him were dropped, but on June 6, 2015, Kalief committed suicide, never recovering from the traumatizing events suffered during his pretrial detention. Kalief Browder's life and other similarly situated indigent criminal defendants, would greatly benefit from these technological advances that would allow them to await trial in their homes, an option that should not be solely reserved for wealthy defendants.

Leigha Ann Weiss is a 3L at St. John's School of Law and a Summa Cum Laude graduate of Fordham University. She served as a Executive Notes & Comments Editor for the Journal of Civil Rights and Economic Development (JCRED) and was the Best Note Award recipient for the full article for this Blawg entitled "Incarcerating the Accused: Reforming Bail for the Pretrial Detention of Juveniles" which is a forthcoming publication of JCRED.

Suggested citation: Leigha A. Weiss, New Technology Offers Pretrial Release for Indigent Accused, JURIST - Student Commentary, Oct. 12, 2017, http://jurist.org/student/2017/10/leigha-weiss-techonology-for-pretrial-release.php.



This article was prepared for publication by Henna Bagga, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org.

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.
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