The Ethics of Pretrial Electronic Monitoring Abstract

A growing number of jurisdictions are turning to electronic monitoring as a bail condition or alternative to pre-trial detention. This development raises a series of thorny ethical issues. Given compelling concerns with cash bail, risk assessments, and preventative detention, does pretrial electronic monitoring (PEM) offer a welcome improvement? Or does PEM merely replicate the issues with current pretrial detention regimes, encroaching on the liberty of those accused of crimes and subjecting marginalized people to unfair surveillance? This paper addresses these questions in offering a qualified defense of PEM. I first claim, broadly, that given the presumption of innocence and concerns about pretrial punishment, people should (i) only be detained when there is a credible threat of dangerousness and (ii) the degree of liberty deprivation in detention should be minimal. I then show that PEM infringes on liberty, albeit to a lesser degree than detention through incarceration. I argue that, like detention through incarceration, PEM is only appropriate in cases where there is a credible threat of harmful behavior and should not be used as a default extra security measure. I argue further that PEM should not be employed in cases where people are unable to afford money bail, given the comparative unfairness of some people "paying for privacy." I conclude by showing that if seriously limited in its implementation, PEM offers a means to significantly reduce, and perhaps eliminate, our reliance on pretrial detention by incarceration.