The Yale Law Journal

November 2023

Seeking Equity in Electronic Monitoring: Mounting a Bearden Challenge

Criminal ProcedureAntidiscrimination LawCivil-Rights Law

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.


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.