Although there is a long list of fees in the criminal legal system that can wreak havoc on individuals’ lives, fees imposed for electronic monitoring (EM) can be among the most costly, least transparent, and most complicated to quantify. For the purposes of this report, EM is defined as any technology used to track, monitor, or limit an individual’s physical movement or alcohol consumption. It, and the costs associated with it, may be imposed as a condition of probation, parole, diversion, or some other community-based sentence or as a condition of pretrial release for those who have not been found guilty of anything. Its use is widespread in both the juvenile and adult criminal court systems. In most states, the individuals on EM are required to pay – daily, weekly, monthly, or flat fees – in order to be tracked, monitored, and have their liberty curtailed. Failure to pay such fees can lead to extended periods of supervision, additional fees, or even jail.
This report will primarily focus on the ways state, local, and municipal governments or courts impose fees on people placed on these devices. It specifically examines the quagmire of how and when states are charging, or allowing others to charge, EM fees to individuals ordered into these programs. We do this by focusing our examination on legislative authorization and statewide court rules that authorize EM fees. We examined statutes and rules from all 50 states and the District of Columbia to determine whether their codes authorize fees for electronic monitoring at any point in the criminal legal system and to what extent. 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.
Want to know where your state stands on electronic monitoring fees? Read the full report to get specific information on each state and its statutes.
43 states have statutes or rules explicitly authorizing fees for electronic monitoring.
Beyond simply authorizing the use of electronic monitoring, these states’ statutes include language that authorizes fees for EM as a condition of a person’s pretrial and/or post-sentencing release.
- 29 states expressly authorize EM fees for individuals both during the pre-trial and post-sentencing phases.
- New Jersey is the only state that expressly authorizes EM fees at the pretrial stage but lacks any statute authorizing EM fees at the post-sentencing phase.
- 13 states expressly authorize EM fees during the post-sentencing phase but not during the pretrial phase.
Only 2 states expressly prohibit the use of EM fees, at least at some stages.
- In 2022, California passed legislation expressly prohibiting the use of EM fees.
- Rhode Island expressly prohibits EM fees for those not yet convicted of an offense, but still allows it as a condition of a sentence.
6 states and the District of Columbia lack statutory authority for EM fees at any point during the criminal legal process, but this is not necessarily preventing EM fees.
- The District of Columbia, Hawaii, New Hampshire, New Mexico, New York, Oregon, and Vermont lack explicit statutory authority to impose EM fees at any stage. This, however, does not mean that some other authorization may not exist.
- In New York, for example, although there is no explicit statutory authorization for EM fees, case law holds that an implicit authorization exists, absent legislation to the contrary. EM fees, both probation location monitoring and SCRAM devices, are being charged in some New York counties.
- Oregon amended its statute to eliminate language that had previously permitted charging fees related to EM at any stage. Simply removing authorizing language, however, rather than prohibiting the practice, may not be enough to end the practice. As of July 14, 2022, FFJC identified at least one county in Oregon that reports it still collects EM fees. Similarly, FFJC found that in New Hampshire, some counties and the state’s Department of Corrections acknowledge charging EM fees.
- At the pretrial level, there was no explicit statutory or rule-based authorization for EM fees in 20 states or the District of Columbia. At the post-sentencing stage, the codes lacked explicit authorization for EM fees in eight states and the District of Columbia. Again, 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.
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 simply authorize a “reasonable fee,” which ultimately allows the EM provider–whether a governmental agency or private for-profit company–to set any fee it deems appropriate, with little or no oversight to check such decisions. Similarly, other statutes require only that EM monitoring fees be “associated with the cost of monitoring,” which is wholly undefined and could conceivably include the costs of the devices, supervision fees, administrative fees, staff salaries, overhead, and a host of other amorphous and unregulated expenses.
23 states do not statutorily require that someone’s ability to pay be considered when assessing EM fees.
- Illinois, Kentucky, Missouri & Nevada are the only four states with statutes that expressly mandate consideration of a person’s ability to pay in both the pretrial and post-sentencing stage when assessing EM fees.