Seeking Equity in Electronic Monitoring: Mounting a Bearden Challenge

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.