Under Arizona law, persons charged with certain bailable sex offenses must be released on their own recognizance or on the execution of bail. For persons who are charged with certain felony violations and who are released on their own recognizance or on bail, a judge must impose electronic monitoring “where available.”
Robert Hiskett was released on his own recognizance pending trial; he was required to wear a GPS monitoring device and to pay all costs associated with that GPS monitoring device. This entailed a $150 down payment and $400 monthly payments. After four months, Hiskett could no longer afford the continued monthly costs of the device and moved to modify his release conditions, arguing that Mohave County must bear the cost of the pretrial electronic monitoring services imposed pursuant to Arizona law. He averred that Mohave County could not pass the costs onto him and that the provision of the law was unconstitutional under the United States and Arizona constitutions.
The Superior Court determined that because Mohave County was unable and/or unwilling to bear the costs of electronic monitoring, such monitoring was not available in Mohave County. Further, it determined that the unavailability of electronic monitoring constituted a change in circumstances; it therefore revoked the own-recognizance release and imposed a $100,000 secured bond. Hiskett could not post bond and was therefore taken into custody. Hiskett then filed a petition with the Court of Appeals of Arizona, Division 1, averring that the lower court had abused its discretion by changing his release status and not addressing his constitutional arguments. The Court of Appeals vacated the lower court’s order, ultimately allowing Hiskett to be released with electronic monitoring that he was not required to pay for.
Holding
Defendants need not shoulder the cost of pretrial electronic monitoring. The Superior Court lacked the statutory authority to order that Hiskett bear the cost of electronic monitoring during his pretrial release. Finding that the statute was silent regarding who should bear the cost of pretrial electronic monitoring, the court reasoned that if the legislature had intended for defendants to bear the cost, the legislature would have expressly stated as such. Indeed, the legislative history indicated that the “where available” language was included in the statute so that counties in which electronic monitoring is not available would not have an additional cost.
The phrase “where available” in the statute encompasses not just the financial ability of the county to pay the costs of electronic monitoring—it also includes the actual availability of the electronic monitoring service. The unavailability of electronic monitoring in a defendant’s hometown is a relevant factor to a court’s release determination. Given that there was no evidence concerning Mohave County’s ability to pay for electronic monitoring, the Superior Court abused its discretion in concluding that such monitoring was not available in the county.
The Superior Court’s determination was vacated, and the case was remanded to develop a record on the availability of electronic monitoring in Mohave County. The Court was required to hold a hearing to address the county’s ability to bear the expense, either in-house or through contracting with a private provider, as well as the cost and potential cost savings of electronic monitoring versus pretrial incarceration. The court noted that it is likely that electronic monitoring of a pretrial defendant is less expensive than holding that pretrial defendant in jail, and assuming that is the case, Mohave County may not simply elect to render monitoring unavailable by refusing to pay for it. Citing the doctrine of constitutional avoidance and rules of justiciability, the court refrained from addressing the constitutional issues.
You can read relevant court documents via the ACLU of Arizona.