The Defense Attorney’s Arsenal In Challenging Electronic Monitoring

In criminal prosecutions, electronic monitoring (EM) is pitched as a “humane alternative” to incarceration – but it is not. The latest generation of “e-carceration” tools are burdensome, harsh, and often just as punitive as imprisonment. Fortunately, criminal defense attorneys have options when shielding their clients from this over-used and harmful tech.

Framed as a tool that enhances public safety while reducing jail populations, EM is increasingly used as a condition of pretrial release, probation, parole, or even civil detention. However, this technology imposes serious infringements on liberty, privacy, and due process for not only those placed on it but also for people they come into contact with. It can transform homes into digital jails, inadvertently surveil others, impose financial burdens, and punish every misstep—no matter how minor or understandable.

Even though EM may appear less severe than incarceration, research and litigation reveal that these devices often function as a form of detention in all but name. Monitored individuals must often remain at home for long periods, request permission to leave for basic needs, and comply with curfews or “exclusion zones.” Violations, even technical ones—such as a battery running low or a dropped GPS signal—can result in arrest and incarceration. Being able to take care of oneself and reintegrate into the world becomes a minefield of compliance and red tape. The psychological burden, social stigma, and physical discomfort associated with EM are significant, particularly for vulnerable populations.   

For many, EM still evokes bulky wrist or ankle “shackles” that can monitor a subject’s location, and sometimes even their blood alcohol levels. These devices have matured with digital technology however,  increasingly imposed through more sophisticated devices like smartwatches or mobile phones applications. Newer iterations of EM have also followed a trajectory of collecting much more data, including biometrics and more precise location information.

This issue is more pressing than ever, as the 2020 COVID pandemic led to an explosion in EM adoption. As incarceration and detention facilities became superspreader zones, judges kept some offenders out of these facilities by expanding the use of EM; so much so that some jurisdictions ran out of classic EM devices like ankle bracelets.

Today the number of people placed on EM in the criminal system continues to skyrocket. Fighting the spread of EM requires many tactics, but on the front lines are the criminal defense attorneys challenging EM impositions. This post will focus on the main issues for defense attorneys to consider while arguing against the imposition of this technology.

PRETRIAL ELECTRONIC MONITORING

We’ve seen challenges to EM programs in a variety of ways, including attacking the constitutionality of the program as a whole and arguing against pretrial and/or post-conviction imposition. However, it is likely that the most successful challenges will come from individualized challenges to pretrial EM.

First, courts have not been receptive to arguments that entire EM programs are unconstitutional. For example, in Simon v. San Francisco et.al, 135 F.4th 784 (9 Cir. 2025), the Ninth Circuit held that although San Francisco’s EM program constituted a Fourth Amendment search, a warrant was not required. The court explained their decision by stating that the program was a condition of pretrial release, included the sharing of location data, and was consented to by the individual (with counsel present) by signing a form that essentially operated as a contract. This decision exemplifies the court’s failure to grasp the coercive nature of this type of “consent” that is pervasive in the criminal legal system.

Second, pretrial defendants have more robust rights than they do after conviction. While a person’s expectation of privacy may be slightly diminished following arrest but before trial, the Fourth Amendment is not entirely out of the picture. Their “privacy and liberty interests” are, for instance, “far greater” than a person who has been convicted and is on probation or parole. United States v. Scott, 450 F.3d 863, 873 (9th Cir. 2006). Although individuals continue to retain Fourth Amendment rights after conviction, the reasonableness analysis will be heavily weighted towards the state as the defendant is no longer presumed innocent. However, even people on probation have a “substantial” privacy interest. United States v. Lara, 815 F.3d 605, 610 (9th Cir. 2016). 

THE FOURTH AMENDMENT

The first foundational constitutional rights threatened by the sheer invasiveness of EM are those protected by the Fourth Amendment. This concern is only heightened as the technology improves and collects increasingly detailed information. Unlike traditional probation or parole supervision, EM often tracks individuals with no geographic limitations or oversight, and can automatically record more than just approximate location information.

Courts have increasingly recognized that this new technology poses greater and more novel threats to our privacy than earlier generations. In Grady v. North Carolina, 575 U.S. 306 (2015), the Supreme Court, relying on United States v. Jones, 565 U.S. 400 (2012) held that attaching a GPS tracking device to a person—even a convicted sex offender—constitutes a Fourth Amendment search and is thus subject to the inquiry of reasonableness. A few years later, the monumental decision in Carpenter v. United States, 138 S. Ct. 2206 (2018), firmly established that Fourth Amendment analysis is affected by the advancement of technology, holding that that long-term cell-site location tracking by law enforcement constituted a search requiring a warrant.

As criminal defense attorneys are well aware, the Fourth Amendment’s ostensibly powerful protections are often less effective in practice. Nevertheless, this line of cases still forms a strong foundation for arguing that EM should be subjected to exacting Fourth Amendment scrutiny.

DUE PROCESS

Three key procedural due process challenges that defense attorneys can raise under the Fifth and Fourteenth Amendments are: inadequate hearing, lack of individualized assessment, and failure to consider ability to pay.

Many courts impose EM without adequate consideration of individual circumstances or less restrictive alternatives. Defense attorneys should demand evidentiary hearings where the government must prove that monitoring is necessary and narrowly tailored. If the defendant is not given notice, hearing, or the opportunity to object, that could arguably constitute a violation of due process. For example, in the previously mentioned case, Simon v. San Francisco, the Ninth Circuit found that individuals who were not informed of the details regarding the city’s pretrial EM program in the presence of counsel had their rights violated.

Second, imposition of EM should be based on an individualized assessment rather than a blanket rule. For pretrial defendants, EM is frequently used as a condition of bail. Although under both federal and state bail frameworks, courts are generally required to impose the least restrictive conditions necessary to ensure the defendant’s court appearance and protect the community, many jurisdictions have included EM as a default condition rather than individually assessing whether EM is appropriate. The Bail Reform Act of 1984, for instance, mandates that release conditions be tailored to the individual’s circumstances. Yet in practice, many jurisdictions impose EM categorically, without specific findings or consideration of alternatives. Defense counsel should challenge this practice by insisting that judges articulate on the record why EM is necessary, supported by evidence related to flight risk or danger. Where clients have stable housing, employment, and no history of noncompliance, EM may be more restrictive than justified.

Lastly, financial burdens associated with EM may also implicate due process where a failure to pay can result in violations and incarceration. In Bearden v. Georgia, 461 U.S. 660 (1983), the Supreme Court held that courts cannot revoke probation for failure to pay fines or restitution without first determining whether the failure was willful. Relying on Bearden, defense attorneys can argue that EM fees imposed on indigent clients amount to unconstitutional punishment for poverty. Similarly, a growing number of lower courts have agreed, particularly where clients were not given the opportunity to contest their ability to pay. Defense attorneys should request fee waivers, present evidence of indigence, and challenge any EM orders that functionally condition liberty on wealth.

STATE LAW PROTECTIONS

State constitutions and statutes often provide stronger protections than federal constitutional minimums. In addition to state corollaries to the Fourth and Fifth Amendment, some states have also enacted statutes to govern pretrial release and conditions. A number of states have established a presumption in favor of release on recognizance or personal recognizance bonds. In those jurisdictions, the state has to overcome this presumption before the court can impose restrictive conditions like EM. Some states require courts to impose the least restrictive conditions necessary to achieve legitimate purposes, making EM appropriate only when less restrictive alternatives are inadequate.

Most pretrial statutes list specific factors courts must consider, such as community ties, employment history, family responsibilities, nature of the offense, criminal history, and risk of flight or danger to community. Courts that fail to adequately consider these factors or impose generic monitoring conditions may violate statutory requirements.

For example, Illinois’s SAFE-T Act includes specific protections against overly restrictive EM conditions, but implementation has been inconsistent. Defense attorneys in Illinois and states with similar laws should challenge monitoring conditions that violate specific statutory requirements.

TECHNOLOGICAL ISSUES

Attorneys should also consider the reliability of EM technology. Devices frequently produce false violations and alerts, particularly in urban areas or buildings where GPS signals are weak. Misleading data can lead to violation hearings and even incarceration. Attorneys should demand access to raw location data, vendor records, and maintenance logs. Expert testimony can help demonstrate technological flaws, human error, or system limitations that cast doubt on the validity of alleged violations.

In some jurisdictions, EM programs are operated by private companies under contracts with probation departments, courts, or sheriffs. These companies profit from fees paid by clients and have minimal oversight. Attorneys should request copies of contracts, training manuals, and policies governing EM use. Discovery may reveal financial incentives, lack of accountability, or systemic issues such as racial or geographic disparities in monitoring. These findings can support broader litigation or class actions, particularly where indigent individuals are jailed for failing to pay private vendors.

Recent research provides compelling evidence that EM fails to achieve its stated purposes while creating significant harms. Studies have not found significant relationships between EM of individuals on pretrial release and their court appearance rates or likelihood of arrest. Nor do they show that law enforcement is employing EM on individuals they would otherwise put in jail.

To the contrary, studies indicate that law enforcement is using EM to surveil and constrain the liberty of those who wouldn’t otherwise be detained, as the rise in the number of people placed on EM has not coincided with a decrease in detention. This research demonstrates that EM represents an expansion of government control rather than a true alternative to detention.

Additionally, EM devices may be rife with technical issues as described above. Communication system failures that prevent proper monitoring, and device malfunctions that cause electronic shocks. Cutting of ankle bracelets is a common occurrence among users, especially when the technology is malfunctioning or hurting them. Defense attorneys should document all technical issues and argue that unreliable technology cannot form the basis for liberty restrictions or additional criminal charges.

CREATING A RECORD FOR APPEAL

Attorneys should always make sure they are creating a record on which the EM imposition can be appealed, should the initial hearing be unsuccessful. This will require lawyers to include the factual basis for challenge and preserve the appropriate legal arguments. The modern generation of EM has yet to undergo the extensive judicial review that ankle shackles have been subjected to, making it integral to make an extensive record of the ways in which it is more invasive and harmful, so that it can be properly argued to an appellate court that the nature of the newest EM requires more than perfunctory application of decades-old precedence. As we saw with Carpenter, the rapid advancement of technology may push the courts to reconsider older paradigms for constitutional analysis and find them wanting. Thus, a comprehensive record would be critical to show EM as it is—an extension of incarceration—rather than a benevolent alternative to detention. 

Defeating electronic monitoring will require a multidimensional approach that includes litigating constitutional claims, contesting factual assumptions, exposing technological failures, and advocating for systemic reforms. As the carceral state evolves, attorneys must remain vigilant and proactive in defending the rights of their clients.