EM and Juvenile Justice EM and Parole EM and Pre-Trial Justice EM and the Surveillance State

Reflections on My Visit to the Confederation of European Probation, December 2014

I had the extreme pleasure of being invited to the semi-annual meeting of the European Confederation of Probation(CEP) in Frankfurt, Germany in early December. I spent three days with over 200 people from more than 30 countries who have a deep interest in electronic monitoring. While the majority of them worked in probation, there were also judges, police, researchers, government officials and entrepreneurs. In addition, I took part in the program, making a presentation about the state of electronic monitoring in the US while describing some of my own experiences on the monitor as well as the material I have gathered from interviewing other people. A copy of my presentation is posted at the CEP website.
Even though no country in Europe uses electronic monitors as frequently as the US on a per capita basis, the complexity of debate among the participants in the conference far exceeded anything I have encountered on this side of the Atlantic. Three things stood out for me.
Monitors and Human Rights-The Europeans Care
The first was that for nearly everyone there, the monitor should not be imposed without a careful consideration of the human rights implications of putting a tracking device on a person. A complex debate has taken place, particularly in Germany, over various aspects of this question. Whereas most discussion in the US focuses on mechanisms of control or recidivism impact, the Europeans recognize that monitoring someone’s location and activities is both punitive and a distinct invasion of privacy which needs to be thought about carefully before implementation. Given the German experience of both the Third Reich and the East German Stasi, it is not surprising that such matters would gain considerable attention there. In fact, at the Federal level, the German government has discouraged the use of monitors. Only one state, Hesse, (where the conference took place) has implemented monitoring and they only use it on 68 people. The human rights questions largely revolve around access to data. The Germans are concerned that data collected through monitoring can be used in criminal investigations which actually don’t meet the notion of probable cause. So, for example, in the implementation of a GPS location monitoring system local judge Silke Eilzer summarized the current wisdom in Germany: that police should not be able to examine the location of everyone on a monitor in a specific town when a crime was committed. Rather, before electronic monitoring data could be accessed at all, there would need to be probable cause that a particular person on a monitor had a link to the crime and then only that person’s data could be introduced into an investigation. Eilzer also shared concerns about how long data from EM should be kept. At present, German authorities are required to delete data after two months, a startlingly short period to most people in the audience.
Dominic Lehner, a prominent Swiss lawyer with a range of experience inside and outside the criminal justice system and a major driver of EM policy in the EU, raised an issue in response to a device that one company had produced that tracked not only location, but movement and temperature. So, for example, the device could report whether the person was lying down or standing up, if they were in a sauna or a walk-in cooler, if they were jogging in place or standing. Lehner was especially bothered by the potential for this device to record a person’s activities in the bedroom-which for him was unacceptable. Concerns for what I call the “rights of the monitored” rarely find expression in US discussions about electronic monitoring. The perspectives of Eizler and Lehner were incredibly refreshing.
Probation Officers Are Social Workers, Not Cops!!!
Second, spokespeople from every country put forward EM as a tool, not as a solution. There was no attraction to EM as a quick-fix. From the UK, where it is used the most often and where the incarceration rate is higher than most of Western Europe, a person on a monitor would always be assigned a probation officer, which in European terms means social worker. (In fact in some countries, a person has to be a trained social worker to be a probation officer.) While rehabilitation departed from most jurisdictions in the US some two decades ago, it remains at the center of the criminal justice debate and practice in Europe.
In this vein, during my presentation I noted that if I were called upon to speak to a gathering this size of probation officers in the U.S., I would be a little fearful, as many of them have assumed policing rather than supporting roles. Jaws dropped open when I told them that parole officers in some states carry guns and that they (and probation officers) may do unannounced searches of houses looking for drugs and other contraband. This CEP gathering was a collection of earnest souls, focused on getting their clients onto a positive life track, not wanna-be CSI investigators trying to catch their charges out of bounds. What a delightful change.
Third, the relationship to the technology was different. While Radio Frequency (RF) devices still exist in many places in the US, most people regard them as the EM equivalent of a flip phone-second rate technology from a bygone era. But in Europe, the limited capacity of RF (it can only tell whether a person is at home but cannot pinpoint their location once they leave the house), is seen as an advantage for many people characterized as “low risk.” The regimes of “curfew” typically allow people out of the house up to 12, even 14 hours a day, providing them with desired levels of freedom. Ultimately the devices seemed intended to keep people at home during night time, when most “trouble” happens, rather than aiming at controlling and monitoring their every move. Countries like Sweden and even the UK have not used GPS at all because of the privacy concerns about tracking someone’s moves and the massive amount of data generated which allows cataloging behavior patterns, associations, and activities which are mostly not considered the business of probation.
Vendors Trying to Grapple with Human Rights As Well
In addition to these three notions about monitoring, one of the most surprising aspects of the conference was the sponsorship and the high level presence of vendors of the technology. At first I viewed this with concern, thinking that the conference would be little more than a marketing venture. And while the companies did do their marketing, they also engaged intensely with participants about what probation officers would and would not like to see in future electronic monitoring devices. Engineer Urs Hunkeler, who is a leading force in the recent Swiss monitoring startup Geosatis, co-facilitated an incredibly stimulating workshop in which he focused on matching up the capacities of the engineering world with the needs and wants of probation officers. While like all engineers he had great enthusiasm for the capacity of the technology to capture and archive information, he also listened with an attentive ear to the human rights concerns of these end users. While public-private partnerships often contain a rather minimal influence from the public side, in this case I felt that the industry and the users were attempting to grow together to get a device that would minimize technical difficulties for the users (things like short life of batteries and losing signal) and a size and design that would represent less of stigma to many people. This quote from one of the evaluations from a company representative, echoed this perspective: “I used to say “We are one of those companies who don’t like their customers (Offenders)”, but this conference made me think beyond, at the end of the day offenders are human beings. This conference opens up a new door for me to think from their perspective. The solutions we make should be thought of their day to day practical and social impact on their way of life.”
Concerns
While the debate and overall direction were positive, there were some areas of concern. Belgium, for example, one of high per capita users of electronic monitoring on the continent, is moving to a much tighter GPS/house arrest which would make it almost impossible for those on a monitor to work a night shift job or take part in evening activities. And while the presentations were well-researched and stimulating, apart from myself, no one spoke directly from their own experience of being on a monitor. Although the local Germans require all their probation officers to wear an ankle bracelet for two or three weeks, the stigma and discomfort of the device don’t begin to equate with the institutional control and the threat of reincarceration that comes with most EM regimes, especially those in the US. The voice of the monitored and their loved ones needs a presence in such gatherings.
Lastly, no one seemed to have any startling predictions about the future of electronic monitoring, nor was there a sense of extreme urgency to move forward. Perhaps the CEP has achieved its pinnacle with the completion of a recommendation on electronic monitoring adopted by the European Union in February, 2014. The document, which hopefully will acquire some hegemony and influence implementation, carefully balances human rights, rehabilitation and public safety concerns. It has been a great influence on my own work in the US. However, as Dominic Lehner asked in the opening session, “what good is a recommendation?” The answer is obvious, not much if there is no way to ensure its implementation, and a world of good if people take its spirit into their daily work.
I did leave the conference wondering where monitoring might be heading in Europe. In a continent with an incarceration rate of less than a quarter of that of the US, (and in some countries less than 10% of the US rate) the pressure to decarcerate hasn’t reached critical mass. Nonetheless as rising trends toward austerity push governments to reduce spending on corrections, even in some of the low incarceration states in Europe, EM may gain more popularity. Poland where the Ministry of Justice has put ankle bracelets on 35,000 people in the If other countries go the way of Poland, at least any expansion will have been preceded by a serious debate around the human rights and privacy concerns that the technology raises. Sadly, no such debate has occurred at all in the US, where major research and policy focus continues to be cost-cutting, collecting meta data for recidivism studies of dubious statistical validity, and developing more effective systems of control. In the present environment, where mass incarceration has lost considerable favor in the US, a push toward EM is still a distinct possibility. If this does happen, I can only hope that it will include the kind of serious debate that has taken place in the EU and continuous gatherings of human rights oriented practitioners such as the CEP conference to make sure the bracelet does not become a high-tech version of incarceration or as an Jean-Pierre Shackelford, who spent three years on a monitor referred to it, “twenty first century slavery, electronic style.”

About the author

James Kilgore

James Kilgore is an activist , writer and educator based in Urbana, Illinois. He is a Soros Justice Fellow for 2017-18. His project, Challenging E-Carceration, focuses on electronic monitoring in the criminal legal system.

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