When a person is convicted of a crime, they may be sentenced to a period of electronic monitoring, or EM. This means that they will be required to wear an electronic device that tracks their movements and alerts authorities if they leave a specified area. For years, prosecutors and legislators have touted electronic monitoring as an effective alternative to prison that ensures that people comply with requirements put in place by the court while avoiding any further criminal activity. However, a recent report by the ACLU has found that electronic monitoring programs have failed to meet these goals, and they are actually more likely to result in injustice for people who have been accused or convicted of crimes.

Problems With Electronic Monitoring

The use of electronic monitoring has expanded significantly over the past 20 years, increasing by 140 percent between 2005 and 2015. It has become even more prevalent in the years since the onset of the COVID-19 pandemic as officials have attempted to reduce prison populations to limit the spread of the virus. EM is regularly used during pre-trial release, for those who have been sentenced to probation, and when prisoners are released on parole. Those who are being monitored will often face restrictions on where they can go during different times, and they are subject to constant surveillance over their private lives.

The ACLU's report demonstrates that the use of electronic monitoring has not actually made a difference in the areas it is meant to address. Studies have found that EM programs have not affected whether people appear in court when required, and they have not substantially reduced new criminal activity by those who are subject to monitoring. Since they do not actually improve public safety or promote rehabilitation, these programs are more of a method of control rather than a benefit to the community.

The United States has one of the most extensive prison systems in the world, with nearly two million people being held in confinement in federal and state prisons, local jails, and other correctional facilities. While the total prison population has decreased in recent years, the number of people in the U.S. who are incarcerated continues to outpace other countries. As people continue to be convicted of crimes and imprisoned, advocates have questioned whether the prison system is serving its purpose of keeping people safe. A recent book by a former editor of the New York Times and an advocate for criminal justice reform has looked at how the focus on punishing people rather than helping prevent future crimes has led to an increasingly larger prison system that does not actually improve public safety.

Rethinking Criminal Justice in the United States

What's Prison For?, a book written by Bill Keller, looks at the issues that have led to the current system of mass incarceration in the United States. When the "war on drugs" began in the 1970s, the rates of incarceration began to increase, and this issue became worse due to laws passed in subsequent decades. The Anti-Drug Abuse Act of 1986 put mandatory minimum sentences in place for many drug crimes, as well as disproportionate punishments for offenses related to crack cocaine, resulting in many Black defendants receiving longer sentences than white offenders charged with similar crimes. 

The Violent Crime Control and Law Enforcement Act of 1994, which was championed by then-Senator Joe Biden, also led to longer sentences and harsher punishments for many people. This law also eliminated the ability of prisoners to receive Pell Grants that would allow them to pursue a college education, making it more difficult for them to provide for themselves and avoid future criminal activity after being released. To make matters worse, the United States has allowed private, for-profit prisons to function, and since these facilities have an incentive to keep people incarcerated, prisoners are less likely to be released early.

The laws in the United States are supposed to treat everyone fairly, providing "liberty and justice for all." Unfortunately, the U.S. criminal justice system often falls far short of this ideal, especially in regard to how people are treated differently based on their race. For decades, criminal justice advocates have raised awareness of the racial inequities in the system, noting that Black people are much more likely to be arrested and convicted of crimes than white people, and they also receive longer sentences. Despite knowledge of this issue, racial inequities continue to be a problem, and this has been highlighted by a recent report from the National Registry of Exonerations that has shown that Black people are much more likely to be wrongfully convicted than white people.

Ongoing Racial Disparities in Cases Involving Wrongful Convictions

The Registry's report analyzed data related to thousands of exonerations that have occurred in the United States since 1989. While Black people only make up around 13 percent of the U.S. population, they accounted for more than 50 percent of all exonerations. Based on this data, Black people are seven times more likely to be wrongfully convicted than white people. This holds true for all categories of serious crime except those that are classified as white collar crimes. However, the report highlighted three specific types of crimes that are most likely to lead to wrongful convictions for Black defendants:

• Murder - Black people are much more likely to be affected by homicide, and around half of people who commit murder or who are murdered in the United States are Black. Because of this, Black people are about 7.5 times more likely to be wrongfully convicted of homicide than white people. While around 13 percent of murders committed by Black people have white victims, in 26 percent of cases where Black defendants were exonerated of murder charges, they were wrongfully convicted of killing white people. To make matters worse, black defendants exonerated of murder spent an average of three more years in prison than white people who were exonerated of similar charges.

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The ability to have a trial by jury is one of the fundamental rights provided to criminal defendants in the United States. The Sixth Amendment to the U.S. Constitution states that anyone who is charged with a crime has a right to a speedy trial before an impartial jury, as well as the right to be represented by an attorney and to confront witnesses that testify against them. While most people understand these rights and believe that they will be able to defend themselves in court, they may not realize how rarely jury trials actually happen.

Over the past few decades, the number of criminal trials that take place in both state and federal courts has decreased significantly. Currently, only around 2 percent of federal criminal cases go to trial, and state-level cases follow similar trends. Instead, most cases are resolved through plea bargains in which defendants agree to plead guilty to certain charges in exchange for having other charges dropped or receiving reduced sentences. Around 94 percent of state-level felony convictions and 97 percent of federal felony convictions are the result of plea bargains.

Reasons for the Decrease in Criminal Jury Trials

The potential for harsh sentences is one of the primary reasons why defendants are more likely to accept plea bargains in criminal cases. Mandatory minimum sentencing laws that were put in place at both the state and federal levels in the 1980s and 1990s have increased the likelihood that defendants will face lengthy prison sentences if they are found guilty at trial. To avoid these consequences, many defendants choose to plead guilty and accept shorter sentences.

People who become involved in the criminal justice system are likely to face numerous difficulties. They may be accused of serious crimes, and even if they are ultimately found not guilty, the damage to their reputation and their lives can be irreparable. In many of the worst cases, people may die while in police custody, or preventable deaths may occur in correctional facilities. Over the past several decades, there have been tens of thousands of deaths that occurred while people were in the custody of law enforcement. However, the true scope of this problem is unknown due to problems with the reporting of these types of deaths to the federal government.

Problems With the Implementation of the Death in Custody Reporting Act

The Death in Custody Reporting Act (DCRA), a federal law that was passed in 2000 and updated in 2014, requires states to report the deaths of people who are held in police custody, inmates in local and state correctional facilities, and others who are killed by police officers to the Department of Justice. This law also required the DOJ to compile statistics on these deaths and make a report to Congress with recommendations on how preventable deaths may be reduced.

Unfortunately, the DOJ has struggled to collect data from states, and even though its report to Congress was due in 2016, it has yet to provide the required information. While a voluntary reporting system used by the Bureau of Justice Statistics was able to document deaths that occurred between 2000 and 2019, this program ended in 2019. Since then, around 5,000 deaths have gone unreported, with 15 states failing to report any deaths related to arrests and seven states failing to report any deaths in local prisons.