Ohio Council Member Wants to Implant Microchips in People Awaiting Trial

Taking electronic monitoring to the next level.

A Toledo City Council discussion over whether to electronically monitor people awaiting trial took an unexpected turn in June when Council Member Rob Ludeman complained that ankle monitors would not be enough. Instead, Ludeman suggested that the city try implanting GPS microchips in pretrial detainees.

“This can’t be inhumane because we do it to our pets,” he said in defense of the proposal.

Ludeman explained to a Toledo Blade reporter that he had seen many TV shows where fictional criminals were able to slip out of an ankle monitor to commit more crimes. He insisted that implanting microchips would be “painless” and “humane.”

Other members of the City Council immediately balked, calling the proposal at best, cost-prohibitive, and at worst, inhumane and unconstitutional. Experts on pretrial justice and electronic monitoring agreed.

“I think it was in very poor taste for the politician to try and analogize human beings to chipping your pet,” said Stephanie Lacambra, a criminal defense staff attorney at the Electronic Frontier Foundation (EFF).

Ludeman did not respond to The Appeal’s request for comment.

While Ludeman’s suggestion may sound like something out of a science fiction novel, experts say the proposal raises many of the same concerns as commonly used electronic monitoring systems like ankle bracelets, which many prosecutors and lawmakers see as an effective option to release pretrial detainees, eliminate cash bail schemes, and reduce the number of people being held in overcrowded jails.

“There is something just viscerally more invasive about injecting technology into your body without your choice, but the problems are there whether it’s injected or whether it’s an ankle monitor,” Lacambra said.

Ludeman raised his microchipping idea during a City Council discussion over a request from the Toledo Municipal Court to enter into a $179,400 annual contract with the county for electronic monitoring services. A court administrator told the council members that electronic monitoring is an effective way to deal with the limited number of beds in the city’s jail.

The idea of inserting GPS microchips below people’s skin is not completely novel. The Food and Drug Administration approved the implantation of radio frequency identification microchips in humans in 2004, and at least one company, a vending machine software company in Wisconsin, is experimenting with microchipping employees to allow them to open doors, make purchases, and log in to computers. In Sweden, people are using microchips to track medical records and access public transportation.

The mandatory implantation of a device in criminal defendants, however, would most likely violate state and federal laws.

“I have to imagine there would be immediate lawsuits filed,” said Cherise Fanno Burdeen, CEO of the Pretrial Justice Institute. “I’ve never even heard that suggested in a probation or parole context, and once somebody is convicted of a crime, the state essentially has a lot of intrusive permission into their life and movements.”

Foreseeing a world in which invasive technology could routinely be forced upon individuals, five states—California, Missouri, North Dakota, Oklahoma, and Wisconsin—have all prohibited the mandatory implantation of a microchip. In March, a Democratic lawmaker in Maryland introduced what he called “proactive legislation” that would prohibit both employers and the state government from requiring or coercing anyone into being implanted with a device.

Burdeen said Ludeman’s proposal raises important questions that also apply to other forms of electronic monitoring.

“I think a stunt like this—and let’s hope it’s a legislative stunt meant to cause a conversation—is raising the right kind of conversation,” she said.

Microchipping may not be on the immediate horizon, but ankle monitors and other types of electronic tracking devices have exploded in popularity. According to a Pew study, the number of active offender-monitoring devices increased 140 percent from 2005 to 2015, when more than 125,000 people were supervised with the devices. The types of electronic monitoring systems currently used by all 50 states include active GPS, which track an offender’s every movement, and more passive curfew monitoring systems that are used to ensure someone is within a specified range (usually his or her home) at certain times.

After serving five years in prison for second-degree murder and possession of an explosive, James Kilgore spent another year on parole wearing an ankle monitor in 2009. He said the experience was invasive and dehumanizing, and prompted him to begin researching effective alternatives to electronic monitoring. He now leads the Center for Media Justice’s Challenging E-carceration project.

“When I was talking about this back in 2010, the only response I got from anybody who hadn’t been on a monitor was: ‘It’s better than jail,’” Kilgore said. “That’s a narrative that we still have to push back against. … It’s a dead end solution because you’re taking them out of one form of incarceration and putting them in another, and you’re also opening the door to a whole new set of problems.”

In addition to the imposition on a detainee’s civil liberties, Kilgore and other advocates are trying to raise awareness about the fact that electronic monitoring is used more frequently on people of color compared to white offenders. According to the Electronic Frontier Foundation, black people in Cook County, Illinois, represent 70 percent of people on electronic monitoring but just 24 percent of the population.

Although electronic monitoring may be considered a money-saving alternative to locking people up, governments pass fees on to the people being monitored. User fees for monitoring systems range from $3 to $35 a day, an amount that is not insignificant to low-income offenders and their families.

Kilgore’s project created a set of guidelines calling for electronic monitoring to be used as a last resort. Most pretrial defendants, he said, should be released on their own recognizance, as research shows that the majority show up for trial with just a reminder. More than 50 organizations, including EFF, signed on to the guidelines.

“The default should always be release” Lacambra said. “The state really needs to present a compelling argument about why release is not sufficient to make sure they’re going to make their court appearance or that they’re going to pose a serious threat to the community. It’s certainly within a judge’s discretion to weigh those considerations, but there really needs to be a focus on release at the outset and that is a presumption that the state has to overcome, not the other way around.”

Yet many criminal justice experts, especially conservatives, see it differently. Jesse Kelly, state affairs manager for criminal justice at the R Street Institute, a right-leaning nonprofit, wrote in an op-ed in The Hill that electronic monitoring is an effective way to cut costs of operating jails and to reduce overcrowding.

“By implementing more active electronic monitoring programs as an alternative to pretrial incarceration, public safety can be preserved and the costs to the taxpayer can be decreased,” Kelly wrote.

Some research shows that releasing offenders on electronic monitoring, rather than keeping them detained in jail, reduces recidivism. And Lacambra pointed out that research is still limited when it comes to the effects of simply releasing people and trusting them to appear in court.

Instead of experimenting with that option, some advocates continue to praise the benefits of the systems without considering the drawbacks.

“I think it’s very easy for social justice advocates that are really fighting for decarceration within the criminal justice system to try to use electronic monitoring as the silver bullet,” Lacambra said. “I understand that desire because you just want to get these clients out of being caged like animals, but … the default should not then be to switch a physical cage for an electronic one. Just let them out.”