Seeking Equity in Electronic Monitoring: Mounting a Bearden Challenge
abstract. In the 1983 landmark case, Bearden v. Georgia, the Supreme Court held that a court could not revoke a defendant’s probation for failure to pay a fine or fee if the defendant established that they could not afford it. Yet, even today, many defendants remain incarcerated solely because they lack financial resources to afford the requirements of pretrial or postconviction release conditions. One example of such a condition is electronic monitoring (EM), which is often heralded as a less restrictive alternative to incarceration. However, EM is only available to defendants who can afford both its explicit costs and its implicit costs, such as stable housing and phone connectivity. This Comment seeks to remedy the disparity that EM imposes on defendants by applying Bearden to courts’ EM requirements. Under the logic of Bearden, it is unconstitutional for a defendant or convicted individual to be incarcerated solely because they lack the funds to comply with a pretrial or postconviction condition of release. Litigators should seek to apply Bearden not only to explicit court fines, but also to the underlying costs associated with any release conditions.
author. Yale Law School, J.D. 2023. Special thanks to Jenny E. Carroll and Fiona Doherty for their guidance, wisdom, and insights; to all those at the Alaska Public Defender Agency, Juneau office, who taught me so much about what it means to be an advocate; to Yazmine Nichols and Allison Frankel for sharing their knowledge with me; to the editors of the Yale Law Journal, especially Helen C. Malley, who improved this piece tremendously; to Connor Hollenback, for his invaluable support; and finally, to my family, who made all this possible. All errors are my own.
introduction
While working as a Public Defense Intern in Juneau, Alaska, I was often confronted with some version of the following scenario: a client gets caught driving under the influence (otherwise known as committing a DUI) in a small town outside of Juneau—for purposes of this scenario, let’s say it’s in Kake. They are arrested but quickly get released from custody on their own recognizance due to a relatively clean record and deep community ties. The prosecution is willing to make a deal: they ask my client to plead guilty to a DUI, and, in exchange, the prosecutor promises to recommend the minimum sentence. If the client has committed one previous DUI in the last fifteen years, that minimum is twenty days of incarceration and the associated fines and driving restrictions.1 The client decides pleading guilty is likely the best option—they admit they drank and drove and have no other defense—but they are worried about spending twenty days in jail. I tell them there’s a potential solution: in Alaska, as in many states, qualifying offenders can serve their time via electronic home monitoring (EM), or what is often known colloquially as wearing an ankle bracelet.2
Excitedly, they ask me for details—after all, they tell me, serving time on EM at home would be farpreferable to being incarcerated.3 Unfortunately, I have to inform them that, while DUIs ordinarily qualify for EM, there is no possibility of EM in Kake.4 To serve their time on EM, they would need to pay for their own transportation to get to Juneau or another city that provides electronic monitoring.5 Moreover, even if the client were able to pay for that transportation, they would also be responsible for paying for their lodging during their twenty-day sentence, and they would be required to install a “corded telephone” with a “long-distance carrier” inside that residence.6
Indeed, while Alaska allows many convicted individuals to serve their time via EM rather than in a cell, only those with sufficient financial resources can take advantage of this option. To start, Alaska only provides EM in specific locations, predominantly the larger, more metropolitan areas in the state.7 In smaller and more rural communities—communities that have disproportionately high Alaska Native populations and disproportionately less money8—convicted individuals are required either to serve their time in a cell or pay to travel to a city that offers EM and rent a home in that city for the duration of their time on EM. Even if the individual lives in a city that offers EM, they must have a permanent address, the ability to charge their EM device, and working phone service.9 Put simply, those who live in more rural communities, those without a home, and those who cannot afford to equip a home with electricity or phone service are forced to serve their time in custody, while those with greater financial resources are not.10
EM has been used as an alternative to custodial detention since the 1980s, allowing convicted defendants to serve time at home while tracked by EM instead of in jail or prison.11 In the decades after its introduction, the use of EM has expanded: more jurisdictions began using it, jurisdictions used it more frequently, and jurisdictions extended its use to include using EM as an alternative to pretrial detention as well as postconviction imprisonment.12 Today, all fifty states and the federal government utilize electronic ankle monitors in some capacity to track individuals at both the pretrial and postconviction stages of the criminal-legal process.13
While EM offers an attractive alternative to custodial incarceration for many defendants, only those with sufficient financial resources can take advantage of the benefits of EM. Most states charge fees for EM services, though these fees may be on a sliding scale or waived for indigent defendants.14 For example, California recently passed a law that prohibits most EM fees.15 In Alaska, those sentenced to EM may be charged a fee of twelve or fourteen dollars every day they use the service, and while “[a]nindigent offender may request lowered fees, or fees waived based on financial need,”16 there are no data on how effective these “requests” are in practice.
Even assuming that some jurisdictions are waiving the explicit fees of EM for indigent defendants, the underlying costs of the basic requirements to qualify for EM release continue to exclude the most economically disadvantaged defendants. Across the country, EM programs almost invariably require that defendants have a permanent address,17 telephone service (often via a landline),18 and working electricity to charge the device.19
In the landmark 1983 case Bearden v. Georgia,20the Supreme Court held, under the Fourteenth Amendment’s Due Process and Equal Protection Clauses, that a sentencing court could not revoke a defendant’s probation for failure to pay a fine21 or fee,22 absent evidence that the defendant was somehow responsible for the failure.23 Under this “willfulness” standard, a defendant cannot be incarcerated solely because they are too poor to pay court-mandated fees. However, despite the lofty goals of Bearden, people are still being kept in cells due solely to their socioeconomic status—incarcerated because of an inability to afford not only explicit fees,24 but also the underlying costs of the requirements for conditional release.
The disproportionate impact of conditional release is especially concerning because states have been steadily increasing the use of conditions that involve underlying costs to the defendant. While bail-reform movements have succeeded in reducing the amount of cash bail imposed,25 judges have responded by expanding the non-monetary conditions of pretrial release.26 Such non-monetary conditions can include requirements of court attendance, no new law violations, drug or alcohol testing, no-contact orders, substance or mental-health treatment, and EM.27 Even at the postconviction stage, judges continue to impose onerous non-monetary sanctions in the form of post-release probation or parole conditions.28 Much as the efforts at ending cash bail have led to the proliferation of non-monetary conditions of pretrial release, efforts at decreasing mass incarceration have led advocacy groups to push for expanding the use of probation—which, inevitably, expands the use of probation conditions.29
While even the most onerous pretrial or probation conditions may be preferred to incarceration,30 the expansion of such conditions will likely only further exacerbate the disproportionate effects of the criminal legal system on indigent defendants.31 Scholars have begun to note that these conditions pose equity concerns, as it is frequently more difficult—if not impossible—for indigent defendants to abide successfully by such conditions. For example, Natasha Alladina has noted that the requirements of Alaska’s EM program “unfairly limit[] the pool of eligible offenders at the outset—discriminating against the poor and those who do not have homes or phones.”32 The same analysis can be applied to many other probationary conditions: a defendant may be unable to “comply with the court’s order” to receive drug treatment “because she lacks the funds to pay for treatment,” or lacks the funds to pay for the child care or transportation necessary to arrange for such treatment.33 Effectively, pretrial and postconviction conditions of release result in a two-tiered criminal-legal system: the rich are released because they can afford to observe an array of increasingly burdensome conditions, while the poor remain in custody because their poverty means they are unable to meet those same conditions.
In this Comment, I will propose one way to challenge release conditions that effectively incarcerate the poor: mounting a Fourteenth Amendment challenge using the logic of Bearden. According to Bearden,the Fourteenth Amendmentmandates that an individual cannot be incarcerated solely because of their inability to pay a fee. This Comment argues that, according to that same logic, it is unconstitutional for a defendant or convicted individual to be incarcerated solely because they lack the funds to comply with a pretrial or postconviction condition of release. Thus, litigators should seek to apply Bearden not just to explicit court fines, but also to the underlying costs associated with release conditions.
While this argument could be applied to many pretrial and probation conditions, I have chosen to focus on EM as a case study for two reasons. First, especially since the COVID-19 pandemic, EM has been expanding at a rapid rate, making it a particularly relevant time to analyze this release condition and the inequities it (re)produces.34 Secondly, EM demonstrates some of the most extreme disparities between rich and poor defendants and convicted individuals. Whether an individual meets the conditions for EM is a binary decision (i.e., the defendant qualifies for EM or they do not) and is typically decided before the court orders EM.35 Moreover, EM is one of the few conditional release methods that typically offers day-for-day credit for sentences—meaning being sentenced to EM is directly comparable to being sentenced to time in a cell, and therefore a particularly valuable release condition for many.36 As a result, one’s ability to pay can lead to dramatic differences in the EM context. Individuals who do not meet the minimum qualifications for EM (for instance, because they do not have a home address) may not be considered for EM at all, while those who qualify for EM may avoid physical incarceration entirely.
To date, some scholars have chronicled the ways fines and fees continue to drive the incarceration of the poor due to the inconsistent application of Bearden by courts.37 These scholars primarily focus on individuals’ inability to pay explicit fees, rather than chronicling the ways in which underlying conditions of release can have the exact same effect: the disproportionate incarceration of the poor. Thus, this Comment argues that it is only by expanding Bearden’s application to the costs associated with EM conditions that the true promise of Bearden can be realized.
This Comment proceeds in four parts. Part I describes how EM operates, both in the pretrial and postconviction context. Part II examines the standard set forth by Bearden and how that standard has been applied in the years since. Part III analyzes how Bearden might be used to challenge EM requirements, discussing potential pitfalls and challenges to this approach. Finally, Part IV concludes with some suggestions for future policies, including state funding of EM and the elimination of EM entirely.
Some jurisdictions use cellular signals to transmit information about the whereabouts of the device; however, such devices may not work in rural areas without cellular signals. See Taylor Dobbs, Lack of Cell Coverage Hampers Electronic Monitoring of Vermont Inmates, Vt. Digger (June 16, 2011, 12:09 AM), https://vtdigger.org/2011/06/16/cell-coverage-hampers-use-of-electronic-monitoring-devices-for-vermont-inmates [https://perma.cc/S3LW-JQKZ] (describing how “[c]ertain areas of Vermont currently lack cell phone coverage,” which has “stymied” efforts at expanding EM usage). Even if cell phone coverage is available, EM may be limited to certain areas because of staffing shortages. EM not only requires a device but also a probation or pretrial officer to monitor that device. Often, jurisdictions impose geographic requirements so that their officers are only responsible for limited spatial regions—especially since such officers often initiate in-person contact when suspected violations occur. In some rural areas, like many of the rural communities in Alaska, there are no available officers to monitor individuals sentenced to EM, and thus, EM is unavailable in those regions. See, e.g., Federal Location Monitoring, Admin. Off. U.S. Cts., https://www.uscourts.gov/services-forms/probation-and-pretrial-services/supervision/federal-location-monitoring [https://perma.cc/XAW3-CHEA] (describing the roles and responsibilities of officers in an Electronic Monitoring program).
See Sentenced Electronic Monitoring, Alaska Dep’t Corr., https://doc.alaska.gov/institutions/sentenced-electronic-monitoring [https://perma.cc/V96X-XXMB] (noting that the individual on EM must reside and work in one of a specified list of areas, including Juneau).
Id. Even in metropolitan jurisdictions, EM is often restricted to residences within the jurisdiction itself or within some general radius of the area—meaning that those who live outside the jurisdiction’s borders must relocate to take advantage of EM. See Electronic Monitoring Program Placement, Cook Cnty. Sheriff’s Off., https://www.cookcountysheriff.org/departments/cook-county-department-of-corrections/electronic-monitoring-program/electronic-monitoring-program-placement [https://perma.cc/P6SH-YNJG] (requiring that “the residence must be in Cook county”); Electronic Monitoring Program Rules: Pre-Sentenced Participants, S.F. Sheriff’s Dep’t 1 (2020), https://www.sfsheriff.com/sites/default/files/2020-02/Pre-Sentenced%20Individuals%20SFSD%20EM%20Rules%20-%20Revised%202.3.20.pdf [https://perma.cc/VPW8-X69P] (“All participants must live within 50 driving miles of the San Francisco Sheriff’s Department Community.”); Electronic Monitoring Program Policy, Ventura Cnty. Sheriff’s Off. 24 (2012), http://bosagenda.countyofventura.org/sirepub/cache/2/gxnlq03c3bpsjb35iiblrkjy/57243508272023030810104.PDF [https://perma.cc/F8W9-HAN9] (“[Participants] must remain within the County of Ventura at all times unless approved by the EMU [Electronic Monitoring Unit]”).
See Alaska Native Pol’y Ctr., Alaska Native Population, in Our Choices, Our Future: Analysis of the Status of Alaska Natives Report 30, 30 (2004), https://arctichealth.org/en/viewer?file=%2fmedia%2fOur%20Choices%20Our%20Future.pdf [https://perma.cc/SVN7-2ACE] (explaining that the majority of the Alaska Native population lives in rural Alaska); Alaska, Rural Health Info. Hub, https://www.ruralhealthinfo.org/states/alaska [https://perma.cc/G6JM-NBJK] (“Based on 2020 ACS data, the ERS reports that the poverty rate in rural Alaska is 12.6%, compared with 8.2% in urban areas of the state.”); Matthew Berman, Resource Rents, Universal Basic Income, and Poverty Among Alaska’s Indigenous Peoples, 106 World Dev. 161, 161 (2018) (noting that “the state’s rural Indigenous (Alaska Native) peoples” are “a population with historically high poverty rates living in a region with limited economic opportunities”). Geographic restrictions on EM likely result in a disparate racial impact, though a full discussion of such disparities is outside the scope of this Comment.
See Use of Electronic Offender-Tracking Devices Expands Sharply, Pew Charitable Tr. 1 (Sept. 2016), http://www.pewtrusts.org/-/media/assets/2016/10/use_of_electronic_offender_tracking_devices_expands_sharply.pdf [https://perma.cc/3K9Q-3PXY]; Kate Weisburd, Punitive Surveillance, 108 Va. L. Rev. 147, 154 (2022).
See, e.g., Electronic Monitoring Fees: A 50-State Survey of the Costs Assessed to People on E-Supervision, Fines & Fees Just. Ctr. 1 (Sept. 2022) [hereinafter Electronic Monitoring Fees], https://finesandfeesjusticecenter.org/articles/electronic-monitoring-fees-a-50-state-survey-of-the-costs-assessed-to-people-on-e-supervision [https://perma.cc/U8TU-YG2E] (noting that, of all the fees in the criminal justice system, “fees imposed for electronic monitoring (EM) can be among the most costly, least transparent, and most complicated to quantify”); Chaz Arnett, From Decarceration to E-Carceration, 41 Cardozo L. Rev. 641, 704-10 (2019) (discussing the costs associated with EM). For an argument in favor of eliminating EM fees, see generally Jaden Warren, What’s Free: A Proposal to Abolish User Fees for Pretrial Electronic Monitoring, 47 Am. J. Crim. L. 139 (2020).
Cal. Penal Code § 1465.9 (West 2022) (prohibiting the collection of court-imposed costs under California Penal Code section 1203.016, which pertains to EM); see also California AB 1869 Criminal Fees, Fines & Fees Just. Ctr. (Oct. 1, 2020), https://finesandfeesjusticecenter.org/articles/california-ab-1869-criminal-fees [https://perma.cc/MZ76-2YX4] (describing the California bill repealing fees in the criminal-legal system, including the fees for EM).
Policies and Procedures 818.10: Sentenced Electronic Monitoring, Alaska Dep’t Corr. 5 (2020), https://doc.alaska.gov/pnp/pdf/818.10.pdf [https://perma.cc/H2UT-3RLK].
See, e.g., Electronic Monitoring Program Placement, supra note 7 (requiring a “residence” that “must be a house, apartment, or condo”); Electronic Home Monitoring, Hennepin Cnty., Minn., https://www.hennepin.us/residents/public-safety/electronic-home-monitoring [https://perma.cc/3M4T-QTDB] (requiring “[a] verifiable address and [the] ab[ility] to stay at that residence”); Prob. Dep’t, Electronic Monitoring Program (EMP), Cnty. Santa Clara, https://probation.sccgov.org/adult-services/electronic-monitoring-program [https://perma.cc/PQ2E-959W] (same); Probation Department Policy/Procedure Manual: 1:11 Electronic Monitoring, Cnty. San Luis Obispo, https://www.slocounty.ca.gov/Departments/Probation/Forms-Documents/Education-and-Training-Materials-Documents/Procedures/1-Adult-Services-Procedures/Division-Wide/1-11-Electronic-Monitoring.aspx [https://perma.cc/K62J-HD3F] (explaining that individuals may be “terminated” from EM if they “no longer have a place of residence”).
Some jurisdictions explicitly require users to have a landline phone—likely because the equipment in those jurisdictions requires a landline phone to monitor effectively. See, e.g., Pretrial Process and Resources, U.S. Prob. & Pretrial Servs.: N. Dist. Tex., https://www.txnp.uscourts.gov/content/pretrial-process-and-resources [https://perma.cc/GV5W-C98R] (requiring a “private telephone line” that is not “[c]ordless”); Electronic Monitoring, Elec. Frontier Found. (July 12, 2019), https://www.eff.org/pages/electronic-monitoring [https://perma.cc/3HYP-GEE5] (“Some counties . . . require users to own a landline phone.”).
See Arnett, supra note 14, at 705; Electronic Monitoring/GPS Tracking Unit Rules, Ct. Common Pleas & Prob. Dep’t: Cuyahoga Cnty. Ohio, https://cp.cuyahogacounty.us/media/1918/em-gps-rules.pdf [https://perma.cc/WN56-VMH4].
A fine is a monetary amount “imposed upon conviction” which is “intended as both deterrence and punishment.” Matthew Menendez, Lauren-Brooke Eisen & Noah Atchison, The Steep Costs of Criminal Justice Fees and Fines, Brennan Ctr. for Just. (Nov. 21, 2019), https://www.brennancenter.org/our-work/research-reports/steep-costs-criminal-justice-fees-and-fines [https://perma.cc/KP8Q-8BGC].
Fees are “intended to raise revenue.” Id. They can be “automatically imposed and bear no relation to the offense committed” because they are often “intended to shift the costs of the criminal justice system from taxpayers to defendants.” Id. Examples of court-mandated fees include “court-appointed attorney fees, court clerk fees, filing clerk fees, DNA database fees, jury fees, crime lab analysis fees, late fees, installment fees” and fees for EM installment, equipment, and continued monitoring. Id. While the Bearden case itself explicitly addressed the issue of fines, the Court’s language refers to one’s “ability to pay” more broadly, and it is widely accepted that Bearden also applies to other court costs, including fees. See, e.g., Andrea Marsh & Emily Gerrick, Why Motive Matters: Designing Effective Policy Responses to Modern Debtors’ Prisons, 34 Yale L. & Pol’y Rev. 93, 96 (2015) (“Most recently, the Court held in Bearden v. Georgia that states cannot automatically revoke probation for nonpayment of a fine or cost, without consideration of a person’s ability to pay.”); Theresa Zhen, (Color)blind Reform: How Ability-to-Pay Determinations Are Inadequate to Transform a Racialized System of Penal Debt, 43 N.Y.U. Rev. L. & Soc. Change 175, 185 (2019) (“In the context of probation revocations for failure to pay court costs, state court cases mirroring Bearden have proliferated.”); Torie Atkinson, A Fine Scheme: How Municipal Fines Become Crushing Debt in the Shadow of the New Debtors’ Prisons, 51 Harv. C.R.-C.L. L. Rev. 189, 213 (2016) (“Bearden established that sentencing courts must inquire into a defendant’s reasons for not paying a fine or fee before sentencing him to jail time.”); see also Williams v. Illinois, 399 U.S. 235, 244 n.20 (1970) (“What we have said regarding imprisonment for involuntary nonpayment of fines applies with equal force to imprisonment for involuntary nonpayment of court costs.”).
See, e.g., Vanessa Romo, California Becomes First State to End Cash Bail After 40-Year Fight, Nat’l Pub. Radio (Aug. 28, 2018, 10:49 PM ET), https://www.npr.org/2018/08/28/642795284/california-becomes-first-state-to-end-cash-bail [https://perma.cc/5ZZG-P6GV] (noting that some states have “passed laws that reduce their reliance on money bail” while other states “are considering making similar changes”).
While, of course, there are a wide variety of preferences among defendants, and I acknowledge the harms that EM can cause individuals, the fact that clients continue to ask for EM or probation conditions rather than accepting the default of pretrial or postconviction incarceration suggests, in practice, many prefer such conditions to incarceration. This was borne out in my own work with clients in Alaska, who frequently asked for any conditions necessary to avoid incarceration. See also Derek Gilna, Electronic Monitoring Becomes More Widespread, but Problems Persist, Prison Legal News (Oct. 9, 2017), https://www.prisonlegalnews.org/news/2017/oct/9/electronic-monitoring-becomes-more-widespread-problems-persist [https://perma.cc/3WGK-HM3A] (“Those on electronic monitoring and their families prefer the freedom it grants them to remain together.”); Clara Kalhous & John Meringolo, Bail Pending Trial: Changing Interpretations of the Bail Reform Act and the Importance of Bail from Defense Attorneys’ Perspectives, 32 Pace L. Rev. 800, 854 (2012) (“These conditions [including EM], while onerous in their own right, are far preferable to detention.”). Some scholars and activists are starting to question whether EM is actually preferable to incarceration. See generally Weisburd, supra note 13 (suggesting that EM is a form of “punitive surveillance” that can deprive individuals of fundamental right such as the right to privacy, speech, liberty, and due process); Marina Richter, Barbara Ryser & Ueli Hostettler, Punitiveness of Electronic Monitoring: Perception and Experience of an Alternative Sanction, 13 Eur. J. Prob. 262 (2021) (performing a meta-analysis to assesses the degree of punitiveness of EM). However, even if EM as a general practice should be eliminated, see infra Section IV.B, so long as it exists, I argue it should be available to all individuals—no matter their socioeconomic status.
See Bernadette Rabuy & Daniel Kopf, Prisons of Poverty: Uncovering the Pre-Incarceration Incomes of the Imprisoned, Prison Pol’y Initiative (July 9, 2015), https://www.prisonpolicy.org/reports/income.html [https://perma.cc/2G5G-46BG] (reporting that “incarcerated people are dramatically concentrated at the lowest ends of the national income distribution”).
See Carroll, supra note 26, at 148; see also Alicia Virani, Rodrigo Padilla-Hernandez, Tali Gires, Kaitlyn Fryzek, Rachel Pendleton, Ethan Van Buren & Máximo Langer, Creating a Needs-Based Pre-Trial Release System: The False Dichotomy of Money Bail Versus Risk Assessment Tools, UCLA Sch. L. Crim. Just. Program 17-18 (2020), https://law.ucla.edu/sites/default/files/PDFs/Academics/CJP%20Pretrial%20Proposal%20-%202020.pdf [https://perma.cc/AG2L-C7CY] (discussing release conditions that have had “negative consequences”).
Many conditions of release are simply imposed by the judge. In contrast, EM often requires the defendant to complete an application or agreement form to qualify. These forms often require the defendant to specify their permanent address, making it impossible for defendants who have yet to secure permanent housing to qualify for EM. See, e.g., Electronic Monitoring Application, Ventura Cnty. Sheriff (Mar. 30, 2021), https://www.venturasheriff.org/public-resources/electronic-monitoring-application [https://perma.cc/7VMV-R7ZC]; Cmty. Corr. Div., Community Corrections Programs—Electronic Home Detention (EHD), King Cnty. 3 (July 2015), https://kingcounty.gov/~/media/courts/superior-court/docs/criminal/criminal-forms/6-ehd-application-packet-pdf-web.ashx [https://perma.cc/QA2Y-TCG4]; Cook County Sheriff’s Office Community Corrections—Electronic Monitoring (EM) Program (GPS) Information Sheet, Cook Cnty. 2 (Jan. 2022), https://www.cookcountysheriffil.gov/wp-content/uploads/2022/10/Electronic-Monitoring-Unit-Participant-Packet-002.pdf [https://perma.cc/Y2ZR-MR8Y]; see also Criminal Division: Frequently Asked Questions, Fifth Jud. Dist. Allegheny, https://www.alleghenycourts.us/criminal/frequently-asked-questions [https://perma.cc/H8K9-9QPB] (explaining, for pretrial EM, that the defendant “must agree to comply with all rules and regulations set forth by the Allegheny County Adult Probation Electronic Monitoring Program and Pretrial Services to be placed on the program”); Sentenced Electronic Monitoring, supra note 5 (listing requirements for EM, then stating: “DO NOT APPLY if these requirements cannot be met”—indicating that the requirements are mandatory).
See, e.g., 18 U.S.C. § 3563(b)(19) (2018) (stating that when a defendant is “monitored by telephonic or electronic signaling devices,” then that is an “alternative to incarceration”); N.Y. Crim. Proc. Law § 510.40(d) (McKinney 2023) (“A defendant subject to electronic location monitoring under this subdivision shall be considered held or confined in custody.”). Conversely, other conditions of release—such as drug and alcohol testing—often do not substitute for time in custody and thus do not shorten one’s sentence.
See, e.g., Walter Kurtz, Pay or Stay: Incarceration of Minor Criminal Offenders for Nonpayment of Fines and Fees, 51 Tenn. Bar J. 16 (2015) (addressing the framework meant to protect indigent defendants from “being jailed for nonpayment costs”); Jaclyn Kurin, Indebted to Injustice: The Meaning of “Willfulness” in a Georgia v. Bearden Ability to Pay Hearing, 27 Geo. Mason U. C.R. L.J. 265, 286 (2017) (quoting Profiting from Probation: America’s “Offender-Funded” Probation Industry, Hum. Rts. Watch (Feb. 5, 2014), https://www.hrw.org/report/2014/02/05/profiting-probation/americas-offender-funded-probation-industry [https://perma.cc/P6FA-2QVB]) (noting “the supervision fee model is inherently discriminatory” against the poor).