Judge Peter Swann (from left), Judge Paul McMurdie and Judge Lawrence Winthrop hear arguments in Hiskett v. Hon. Lambert/State at the Arizona Court of Appeals in Phoenix on Aug. 22, 2019. (Photo: Thomas Hawthorne/The Republic)
A state law allowing the electronic monitoring of people accused of sex offenses does not give counties the authority to force defendants to pay for their own monitoring before they are convicted of any crime, the Arizona Court of Appeals has ruled.
The Arizona Court of Appeals ruled Tuesday after a Mohave County man told a judge he couldn’t afford to pay $400 a month for pretrial GPS monitoring services through a private company. The judge set his bond at $100,000 and sent him to jail.
Robert Hiskett was charged with sexual conduct with a minor but was released on his own recognizance. He was ordered to be under GPS monitoring, and to pay for it himself.
Hiskett and his attorney brought up their concerns about the GPS monitoring costs at a hearing in May. Hiskett said the fee was too expensive because he was supporting his daughter while also living in a different household.
Robert Hiskett was put in jail after not being able to afford pre-trial GPS monitoring. (Photo: Courtesy of Robert Hiskett)
His attorney, Michael Wozniak, asked that public funds be used to cover the monitoring costs. Instead, Mohave County Judge Rick Lambert sent Hiskett to jail. The judge said during the hearing that it was a community safety issue.
The ACLU stepped in with an emergency appeal, arguing that state law doesn’t allow the Mohave County Probation Department to threaten jail just because someone can’t afford to pay a private company for pretrial electronic monitoring.
The judge then released Hiskett from jail.
The Arizona Attorney General’s Office has weighed in on the matter, saying state law does not give courts the power to force defendants to pay for mandatory pretrial GPS monitoring.
However, the office did say Hiskett should be under GPS monitoring due to the charges against him.
County was trying to get out of paying
The Court of Appeals pointed to State v. Reyes for one reason why Hiskett shouldn’t be burdened with the costs.
The court ruled that Reyes, who was convicted, was not required to pay for his own DNA testing.
Arizona Judge Lawrence Winthrop hears arguments in Hiskett v. Hon. Lambert/State at the Arizona Court of Appeals in Phoenix on Aug. 22, 2019. (Photo: Thomas Hawthorne/The Republic)
“If the superior court in Reyes could not order a convicted felon to pay for mandatory DNA testing where the statute was silent about cost shifting, the same reasoning applies
here — and with greater force — where Petitioner is accused of certain crimes but has not yet been tried, much less convicted,” Judge Lawrence Winthrop wrote in the opinion.
The court said it looked at the legislative history of the state law to come up with its conclusion.
“Although counties are not necessarily required to invest in location monitoring devices, counties that utilize such devices may not require accused defendants such as Petitioner to pay the cost,” Winthrop wrote.
During a November email exchange with Mohave Probation Department Officer Alan Palomino, Hiskett’s attorney asked about the company’s fees.
“The problem with the Pre-Trial defendants is that when they don’t pay for their GPS, the probation department gets stuck with the bill,” Palomino stated in the email. “We don’t have the funding for GPS monitoring for probationers, let alone Pre-Trial defendants, and regardless of a defendant’s innocence or guilt, it is not the probation department’s responsibility to pay for GPS monitoring while their case is pending.”
The Court of Appeals ordered Mohave County to have a hearing on the availability of electronic monitoring:
- Can it be provided by the county or a private company.
- Determine the costs and savings.
- Make an individualized assessment of what released conditions or bail is appropriate.