By Amy Berberyan
NEW YORK, NY – In a report encompassing all 50 states of the United States surveying the costs of electronic monitoring (EM) fees on individuals, the Fines and Fees Justice Center (FFJC) determined fees to be “among the most costly, least transparent, and most complicated to quantify.”
EM, defined by the organization as “any technology used to track, monitor, or limit an individual’s physical movement or alcohol consumption,” is often added to parole, probation, diversion, or pretrial release sentences for individuals who have yet to be found guilty.
Juvenile and adult criminal systems both utilize EM, with individuals being required to pay fees in order to continue being monitored. If these fees are not paid, FFJC notes “extended periods of supervision, additional fees, or even jail.”
The report charged state, local, and municipal courts, and governments force these fees on those required to use EM devices. Statewide court rules, legislative authorization, and statutes and rules from every state and the District of Columbia have been utilized to determine EM data.
The FFJC said, “We explore statutes related to both pretrial release and post-sentencing supervision, the fee amounts authorized, consequences for nonpayment and, to a limited extent, electronic monitoring fees at the local level.”
According to FFJC, 43 states explicitly authorize fees related to the use of EM, with these rules or statutes including EM as a condition of pretrial or post-sentencing release, and 29 states authorize EM fees for both pretrial and post-sentencing release.
FFJC said 13 states authorize post-sentencing EM fees, but not pretrial ones. New Jersey is the only state to authorize pretrial, but not post-sentencing.
Two states, California and Rhode Island, prohibit EM fees in some capacity, the FFJC report noted, adding as of 2022, EM fees are prohibited in California. Rhode Island prohibits these fees for those who have yet to be convicted of an offense, but allows them to be included in the sentence.
The District of Columbia and six states—Hawaii, New Hampshire, New Mexico, New York, Oregon, and Vermont—lack the statutory authority to impose EM fees. This does not equate to prohibition, as some other authorization is often substituted, said FFJC.
New York has a case law that points toward implicit authorization of EM fees, leading to EM fees, probation location monitoring, and SCRAM devices in some New York counties, added FFJC, and Oregon removed authorizing language related to EM fees. FFJC did note this was not enough to end the practice. As of July 14, the organization noted “at least one county in Oregon reports it still collects EM fees.”
FFJC also added some counties in New Hampshire as well as New Hampshire’s Department of Corrections charge EM fees, and, at the pretrial level, the District of Columbia and 20 states lacked explicit statutory or rule-based authorization for EM fees.
The FFJC stated that “this does not necessarily mean that such fees are not assessed in those states, it merely means we were unable to identify legislative authorization for it,” noting that “at least 26 states have statutes or rules that impose fees to cover the costs of an EM program without specifying an amount.”
Some states, said FFJC, include a “reasonable fee” that allows the EM provider, either a governmental agency or private company, to set a price it deems appropriate to the individual, explaining there is little oversight on what they determine this fee to be.
Finally, FFJC said some states do not require that an individual’s ability to pay to be considered when assessing these fees, but Illinois, Kentucky, Missouri, and Nevada are the only states with laws mandating an individual’s ability to pay be considered when assessing both pretrial and post-sentencing EM fees.