Electronic monitoring is becoming a popular alternative to incarceration across the world. But the experience of those impacted by its use widely differs depending on the resources (human, social and financial) at their disposal. This includes, among other issues, having a home and a support network – something not always available to women, the fastest growing population being placed behind bars for drug-related reasons. A different approach is possible, and essential.
When Maria*, an indigenous Zapotec woman living in a community about an hour and a half south of the Mexican city of Oaxaca, was given an alternative to prison, she thought it was good news. In 2014, she was sentenced to 10 years in prison accused of transporting cannabis within the country. Her daughter had been sentenced on the same charges two years earlier.
The alternative sentence given to Maria five years after her original conviction involved using an electronic ankle monitor bracelet initially for six months that were later extended to 14 as part of her conditional release in October 2019. A judge made the offer under Mexico’s National Law of Penal Execution, passed in 2016. Maria’s daughter was also released earlier in 2019, after seven years in prison, under the only condition that she had to report one time to the federal body in charge of the prison system.
The judge’s intentions may have been good. The consequences, however, were not.
The electronic device Maria had to constantly wear around her ankle, visible while wearing her traditional skirt, was a source of humiliation and discrimination among her community, caused her health problems and it came at a high financial cost, while at the same time preventing her from finding employment.
Her story is not unique.
For chronically impoverished indigenous communities, involvement in any aspect of the drug trade can provide much needed income, ensuring that there is food to put on the table; but it comes with a high risk, as those in the lowest levels of the drug trade are also the most likely to be caught and incarcerated.
While authorities have been working on providing alternatives to incarceration, Maria’s story illustrates how their inappropriate use can actually reproduce and exacerbate state forms of punishment, control and surveillance.
There is no doubt that alternatives to incarceration are desperately needed. Around the world, the number of women deprived of their liberty continues to grow. The fifth edition of the World Female Imprisonment List, published in October 2022, shows that the number of women and girls in detention world-wide increased by 60 percent since 2000, while that of men rose by around 22 percent. Latin America and Asia are largely responsible for this trend. Excluding the United States, an estimated 95,000 women are in prison in Latin America and the Caribbean today, compared to 37,671 in the year 2000 — an increase of more than 150 percent in little over two decades.
Punitive drug laws are the driving force behind women’s incarceration in the region. Over the last decade, Latin American governments have increasingly acknowledged the disproportionate impact of harsh drug sentencing laws on women and the need for alternatives to incarceration. Our research shows that women’s incarceration in Latin America is growing at a much faster rate than that of men, a higher percentage of women than men are behind bars for drug-related offenses, and a higher percentage of women than men are in pretrial detention for drug-related offenses.
For the most part, women in prison in Latin America share similar characteristics: they come from situations of pervasive poverty and inequality, have low levels of education, and are either underemployed or unemployed, often working in the informal economy. They likely have suffered from physical abuse and/or sexual violence. And the vast majority are mothers – often single mothers – and may be caregivers for the elderly or those with disabilities. They become involved in the lower echelons of the drug trade to put food on the table for their families.
More than ten years ago, the UN Bangkok Rules were adopted to promote the use of non-custodial alternatives to incarceration, particularly for women with children. Yet the use of such alternatives remains woefully inadequate and insufficient across the region. In the case of Mexico, both the 2014 National Code of Criminal Procedures and the 2016 National Law of Penal Execution allow for the use of alternatives to imprisonment. This did lead to reductions in the number of women behind bars in Mexico between 2014 and 2019, but that trend was reversed by the increased use of pre-trial detention.
In general terms, alternatives to incarceration can range from doing community service, voluntary drug treatment, going to school, or job training – all of which can provide women with opportunities to improve their situations. House arrest, the court-ordered detention of a person in their place of residence, is considered another alternative to incarceration. However, as WOLA and our partners have documented, imposing strict house arrest without guaranteeing that women can be employed and carry out daily tasks, particularly for people in low-income situations, results in house arrest, reproducing many of the punitive characteristics of incarceration.
The use of electronic monitoring can also be deeply problematic – particularly for people with fewer resources. Electronic monitoring is put forward as an alternative to being in prison; if given the choice, who would not prefer to be confined to their own home, if they have one, rather than remaining in squalid prison conditions? For those with more resources – including a comfortable home – electronic monitoring can indeed be a very good alternative, for others, things can be much harder.
In the United States, bipartisan support to address mass incarceration has led to a rapid expansion in the use of electronic monitoring. This trend accelerated during the COVID-19 pandemic as local, state and federal officials sought to reduce prison populations given the health risks for people deprived of liberty and prison staff, due to the impossibility of social distancing in prison settings, as well as the lack of adequate supplies of face masks and cleaning products. Electronic monitoring has also been increasingly used in immigration proceedings as part of ICE’s Alternative to Detention program.
Electronic monitoring can come with strict restrictions, such as only being allowed to leave the home when granted permission on a case-by-case basis or for a few hours a day. In these circumstances, people cannot carry out daily activities like shopping or going to the doctor or to a hospital in an emergency and must depend on their family and friends for economic support as they cannot hold a job. Everyone in the family, or living in the household, is impacted as they end up taking on the responsibilities for providing for the person. Not to mention the privacy concerns raised by being constantly under surveillance.
For that reason, many advocates do not consider electronic monitoring an alternative to incarceration, but rather as reproducing many aspects of incarceration in the home. In his ground-breaking 2022 book, Understanding E-Carceration, James Kilgore, one of the leading experts on this topic in the United States and who himself suffered from electronic monitoring, coined the term “e-carceration.”
One of the surprising finds in Kilgore’s book is that despite the dramatically expanded use of electronic monitoring in the United States, there is very little data on its use. What we do know is that electronic monitoring leads to “net widening.” In other words, judges who normally would not put onerous requirements, including pre-trial detention, on those awaiting trial or coming out of prison are more likely to impose the condition of electronic monitoring, as it is largely viewed as a more benign restriction.
For example, according to a report by the UCLA Criminal Justice Program, the number of people ordered to have electronic monitoring as a condition of pretrial release in Los Angeles increased by 5,250 percent between 2015 and 2021. Particularly for those who are still awaiting trial or sentencing — and innocent until proven guilty — electronic surveillance is intrusive, violates civil liberties, and can inflict needless harm.
The use of electronic monitoring also transfers the costs of confinement from the state to the individual. In the United States, the cost can range from $2,800 to over $5,000 a year. In Mexico, a national law establishes that in all of the country’s prison systems, state and federal, the government should pay for the device; however, this does not always happen in practice, as was the case for Maria. Since Maria comes from an indigenous community and a situation of poverty, the private company providing the “service” waived the fee, which was between about $250 and 300 a month. To put that in perspective, the present minimum wage in Mexico is about $180 a month – and that would be significantly lower in rural areas where people work in the informal sector. In Mexico, this can be the difference between eating or abiding by the conditions for being released. Maria did, however, have to pay a $800 warranty, which was a fortune for her family. In short, big costs may be imposed upon those who are often least able to pay, while private companies reap the profits.
Maria was lucky to live in a community with electricity and a signal to facilitate the electronic monitoring; otherwise, she would have had to move to another place. She was also able to leave the house; her main restriction was that she needed a judge’s permission to leave the state of Oaxaca. However, her daughter recounts, “During the time that she had on the ankle monitor, the farthest that she could go was to a nearby village. Why? Because the monitor had to be recharged. She had to charge it in the morning and in the afternoon. It took about two hours to charge, and she had to sit next to the electric outlet during that time.” Her daughter also tells of the spotty electricity and signals in the village. “If the electricity went out or the signal was lost, when it came back they would call and call to ask about it…or sometimes at 2 in the morning they would call to say that she needed to charge it…they called all the time.”
Maria was also lucky in that her family supported her and was able to pull together the money that was needed for her to leave prison. They also provided for her once she was back home. The fact that Maria has a very united and strong family helped her deal with the consequences of being subject to electronic monitoring.
But that is not always the case. Having a person in home confinement (whether because of the restrictions that can come with electronic monitoring or house arrest) can strain family relations and cause domestic unrest. In some cases, women in home confinement are forced to live with abusive partners and are subject to domestic and/or sexual violence.
Despite her family support, Maria knew she would face tremendous stigma and discrimination in her small, indigenous community. Because her indigenous dress meant that her ankles are always exposed, she wore a bandage over the ankle monitor to hide it. Initially, the judge ordered Maria to wear it for six months. However, because of the COVID-19 pandemic, during which judicial processes ground to a halt and resumed very slowly, she was forced to wear it for 14 months. During that time, her leg with the ankle monitor shrunk slightly and the skin around it dried up because of the long months of connecting the device to electricity. In the United States, reports of the negative health impacts of electronic monitoring are disturbingly common.
If given the choice between staying in prison or getting out with electronic surveillance, most people would logically opt for the latter. Yet in the United States, people who have been under restrictive electronic monitoring regimes will say that it became another form of confinement. People quoted in Kilgore’s book, Understanding E-Carceration, said: “Why would you let me out of jail to put me in another jail inside my home?” “…almost no aspect of a person’s life is unaffected. You are wearing a jail anywhere you go, on your leg, in your phone.” “It is a daily reminder that people view you as sub-human.” And most simply, “I’m not out. It’s just another form of incarceration.”
The choice should not be between prison and electronic monitoring. There are less intrusive alternatives for those either awaiting trial or on conditional release, such as reporting requirements that still allow people to hold down a job and carry out their daily activities. And there is the best alternative of all: keeping people out of the criminal justice system to begin with. Rather than investing in prisons and the surveillance state, governments should invest in communities and reforms that promote gender equality and socioeconomic justice.
Maria began transporting cannabis because there were few opportunities for earning an income in her rural indigenous community. She paid dearly for it – spending five years behind bars. Yet her incarceration made absolutely no dent in the drug trade, as when someone like Maria is detained, there is always someone else ready to take their place. Maria’s life — and those of her children — would have taken a very different path if she had been provided with other opportunities to earn a living and live with dignity.
*Names have been changed to protect the individual’s privacy.