By Nicholas Chrastil | The Lens | March 18, 2021
Years after previous efforts were scrapped due to poor oversight, lack of clear procedures, technological failures, and funding disputes, city officials in New Orleans are once again looking to set up an electronic monitoring program run by public agencies — in partnership with a private vendor — to track the whereabouts of some juvenile and adult defendants who have been let out of jail while their cases are pending.
The program is still in early stages of development. Tenisha Stevens, Commissioner of the city’s Office of Criminal Justice Coordination, told The Lens last week that her office was still having conversations with criminal justice stakeholders and “flushing out the details,” but said that she hoped the program would be up and running in Juvenile Court by this summer.
“We want to make sure that when we implement the program this go-around, that we are implementing a program that is going to be effective and efficient,” Stevens said.
While some judges in Orleans Parish Criminal District Court have continued to order ankle monitoring as a condition of release in recent years, the city hasn’t had a centralized program since 2016 in Criminal District Court and 2018 in Juvenile Court. Both of those programs faced criticism regarding their effectiveness and efficiency before disbanding.
But advocates of renewing a program argue that electronic monitoring can be utilized as an effective alternative to detention, lower the local jail population and also prevent those released from commiting a crime while awaiting trial for previous alleged offenses. And a number of actors in the New Orleans criminal justice system have expressed support for a new program — including New Orleans Police Superintendent Shaun Ferguson, who said at a City Council meeting last month that he is frustrated by having to rearrest individuals released on low bonds, and suggested electronic monitoring as one possible solution.
“We just want to make sure that one, we’re giving folks an opportunity to enjoy freedom until your court proceedings take place,” Stevens said. “And two, if you’re having thoughts about recidivism, to deter you from doing another crime or being involved in criminal activity.
Chief Judge of Criminal District Court Karen Herman and District Attorney Jason Williams have also expressed support.
“I believe we need it,” Williams said in a statement to The Lens.
But some studies suggest that electronic monitoring is not particularly effective in reducing recidivism of pretrial detainees. One review of academic literature on the subject — cited by the city in a recent presentation before the City Council’s Criminal Justice Committee— concluded that electronic monitoring “is shown to have little appreciable effect on recidivism rates.”
And some in New Orleans are also questioning the efficacy of electronic monitoring, and warn of potential unintended consequences of developing another program.
Aaron Clark-Rizzio, executive director of Louisiana Center for Children’s Rights, which serves as the juvenile public defender in New Orleans, said that he is “very skeptical of electronic monitoring as a tool in general,” and that it should only be used in instances where a person would not otherwise be granted release.
“To me, the starting point should be if the judges can look at the jail population, and say,’If I had the program today, these 10 children would go on to ankle bracelet monitoring and go home,’” Clarik-Rizzio said. “Then then to me, that could be a starting point for the creation of a program like this. But that to me is how we should approach such an intrusive program such as [electronic monitoring].”
Clark-Rizzio also said that an ankle monitor can be stigmatizing for kids, and that technology failures can lead to them being punished for violations that are not actually their fault. He urged the city to instead invest more in community programming as opposed to surveillance.
“We just need to invest in kids and communities,” Clark-Rizzio said. “If kids do get arrested, we need to respond in ways that actually get them back on track. And that’s community-based programs and supports, that’s restorative justice programs. It’s not electronic monitors.””
‘Almost a total failure’
During former Mayor Ray Nagin’s administration, the city had an electronic monitoring program in the Criminal District Court that was managed and run by a private contractor, Total Sentencing Alternatives Program. But critics of the program at the time said that monitors were not informing judges of violations in a timely manner.
Rafael Goyeneche, executive director of the Metropolitan Crime Commission and a long-time advocate for a publicly managed electronic-monitoring program, said that when he took a look at the program, he realized that the company had a financial incentive not to report violations.
“I came to the conclusion that, you know, when a private vendor is responsible for this, everybody that they violate out of the program — they’re losing money,” Goyeneche said. “Because they are paid to monitor those people, and the fewer they have, the less they get paid. So there’s a financial incentive.”
“It really shouldn’t be about money, it shouldn’t be about public safety,” he said.
The city scrapped the Total Sentencing Alternatives contract in 2010, awarding a new contract to the Orleans Parish Sheriff’s Office through an unusual purchasing process. But that program, too, was plagued by allegations of mismanagement and inefficiencies. A 2014 report by the Office of Inspector General found “significant weaknesses in program operations and a lack of clearly defined responsibilities and expectations among the OPSO, the City, and judges,” and that the Sheriff’s Office was overcharging the city.
The report said that deputies assigned to monitor defendants were keeping poor records and failing to adequately respond to alerts that informed them when an individual was violating the conditions of the monitor. Then-Inspector General Ed Quatreveaux told The Times-Picayune that the program “was almost a total failure.”
“Citizens thought electronic monitoring was being conducted, but it really just wasted the people’s money, ” he said.
Sheriff Marlin Gusman dismissed the report, accused IG of political grandstanding, and called the program “highly successful”.
And it remained popular among judges. But Gusman ended the program in 2016. The decision ultimately came down to resources — exacerbated by an ongoing dispute between Mayor Mitch Landrieu and the Sheriff’s Office over jail funding, according to Goyeneche.
“Ultimately, the sheriff said, ‘You know what, I don’t need to do this. I’m doing this to try and help the city out, the police department out, public out,” Goyeneche said. “‘And the mayor’s office is working against me.’ So he said, ‘You know, I’m out of it.’”
Ankle monitoring continued for a while in Juvenile Court, but was managed by the court as opposed to the Sheriff’s Office. That program ended in 2018. Stevens said that the problem had to do with the private vendor — Sentinel — who was conducting the monitoring.
“They didn’t have monitors that worked properly,” Stevens said at a City Council Criminal Justice Committee meeting earlier this month. “Out of 30 monitors you may have had 10 [that were working].”
She also said that juvenile judges would sometimes “override” violation alerts, so that when police would go out to check on a violation, they were not actually able to bring a child into custody.
“It just was not working out,” Stevens told The Lens. “It was just pretty much in shambles.”
In recent years, some judges continued to utilize private companies to provide ankle monitoring as a condition of bail without centralized oversight by a vendor or public agency — which has also caused some controversy. A 2019 report by the watchdog organization Court Watch NOLA found that one Criminal Court Judge, Paul Bonin, was steering defendants to a private ankle monitoring company — ETOH — that had contributed thousands of dollars to his judicial campaigns.
“The public should not be left to wonder if an ankle monitor was required by a judge because it comported with public safety or if the ankle monitor was required by the judge because it financially benefited a judge’s campaign contributor,” the report read.
(Bonin, who recently retired, denied that he had crossed any ethical lines, and said he recommended ETOH because he trusted them more than the alternative vendor providing services in New Orleans.)
Court Watch also criticized the costs to defendants: a one-time installation fee of $100, and $10 per day after that, according to the Court Watch report.
In a statement to The Lens regarding the new plans for a electronic monitoring program, Simone Levine, executive director of Court Watch, said that while “electronic monitoring can be a suitable alternative to incarceration” the organization “firmly opposes any electronic monitoring process where the vendor is not chosen by a competitive and ethical bidding process or where the criminal defendant is required to bear the cost of the electronic monitoring themselves.”
“Those vendors who provide campaign contributions to those who are charged with choosing the vendor should be revealed to the public for the campaign contributions they have made,” Levine said.
Details still uncertain
There are still more questions than answers on the details of a new program.
At a presentation in front of the City Council’s Criminal Justice Committee meeting earlier this month, Stevens and Nathaniel Weaver, a project manager in the Office of Criminal Justice Coordination, gave a rundown of the various considerations that would need to be resolved in order for the program to be successful — including defining specific program goals and target populations, to uniform procedures when responding to supposed violations.
Weaver warned that in order to prevent overuse of the program — commonly called “net-widening” — the program should draw strict limitations on who electronic monitoring is actually for, and limit the duration of time an individual is assigned to electronic monitoring.
“If there’s going to be a violation of the terms of release, typically those happen early in the process, so having someone on for 30 days we could identify those instances,” Weaver said.
He also stressed that there needed to be independent oversight for the program outside of the court system. He suggested that could be provided by the Office of Criminal Justice Coordination, the Mayor’s Office, or the Chief Administrator’s Office.
Other questions had to do with the mechanics of monitoring — such as whether or not police would respond to violation alerts as they occur, or if they would only be recorded and used in court proceedings to determine the appropriate sanctions.
Clark-Rizzio warned that what appear to be violations may actually be a technical malfunction or have valid explanations.
“By the time that police officer brings the child to jail, the judge may have been alerted that, oh, actually it was a device that hadn’t been charged. Or the device is faulty. Or some exigent circumstances,” he said. “The child was out after curfew, but that’s because they were actually staying at their dad’s house that night, and people didn’t know that that was an acceptable place for them to be.”
Clark-Rizzio said that the difficulty is setting up a system in which each ostensible violation is first vetted, and then communicated to a judge in order for them to make a decision regarding the appropriate response.
“Does the child need to just have a verbal reprimand? Is it a non-issue? Or do I want the child to be incarcerated? Setting up that system for exactly under what circumstances you’ll do what is really challenging.”
Last week, Stevens told The Lens that the city has still not determined whether the program will be doing active monitoring, where law enforcement is sent out immediately when a person is in violation of their conditions, or passive monitoring, where the violation is recorded and used addressed during court proceedings.
‘This shouldn’t be something that costs defendants money’
There are also still questions regarding the cost of the program — which cost about $400,000 annually when it was run by OPSO between 2010 and 2016.
The city has received a quote from at least one ankle monitor vendor — BI Incorporated, who already has a contract with the state, and according to Stevens, runs the electronic monitoring programs in East Baton Rouge Parish, Jefferson Parish, and St. Tammany.
At the Criminal Justice Committee meeting earlier this month, Stevens said that one of the reasons they were looking at BI is that because it is a statewide contractor approved for local government use, the city wouldn’t have to go through a full bidding process.
“That is sort of the company we’re looking at because we don’t have to go through the entire [request for proposals] process because they already have a state contract,” Stevens said.
However, she later told The Lens that the city likely would issue an open RFP rather than piggybacking on the statewide BI contract.
“We are going to follow whatever the procurement city rules are,” she told The Lens. “We have always followed those rules. So we will do what we need to do along those lines.”
According to a price quote from BI to the city, obtained by The Lens through a public records request, an ankle monitor would cost $3.65 per day per client. That includes both a rental fee for the equipment, along with a “monitoring cost.”
It is not yet clear where the money will come from — and city officials have said they have still not ruled out charging defendants for taking part in electronic monitoring, which is opposed by several stakeholders.
“We are still working through that phase of the project,” said LaTonya Norton, a spokesperson for the city, in an email. “We have to consult with the City Council to see what they will agree to fund. Those conversations have not taken place.”
In a statement, the Orleans Public Defenders Office said that it had not yet been informed of the particulars of the program, but were concerned that the program could “simply create a new kind of wealth-based detention.”
Chief Criminal District Court Judge Karen Herman echoed those concerns.
“I don’t see this as something that is like a money making scheme to charge defendants for their ankle monitors,” Herman said. “I think that would be a problem. This shouldn’t be something that costs defendants money. I’m hoping that’s not where it’s going to go, because that wouldn’t be helpful.”