Authority to Impose Location Monitoring
Pretrial
The court has authority to issue an order of release or detention pending trial to a person charged with an offense.1 18 U.S.C. §§ 3141, 3142. If released, the person may be released on personal recognizance, upon execution of an unsecured appearance bond, or on a condition or combination of conditions set forth in 18 U.S.C. § 3142(c). 18 U.S.C. § 3142(a). Under 18 U.S.C. § 3142(g), the judicial officer must consider several factors in determining whether there are conditions of release that will reasonably assure the courtroom appearance of the person charged with an offense and the safety of any other person and the community. One condition that may be appropriate is LM. Placement on LM during pretrial release is authorized under 18 U.S.C. §§ 3142(c)(1)(B)(iv), (vii), and (xiv) (restrictions on place of travel, curfew, and any other restriction necessary). Placement on LM is required in any case involving a minor victim under certain sex offenses. 18 U.S.C. § 3142(c).
Post-Conviction
Probation
As an alternative to imprisonment, an individual may be statutorily eligible for probation.2 A sentence to probation includes mandatory conditions and may include discretionary conditions. See 18 U.S.C. §§ 3563(a)-(b).3 Placement on LM is an example of a discretionary condition of probation. Under 18 U.S.C. § 3563(b)(19) the court is authorized to impose, as an alternative to incarceration, a discretionary condition requiring that: (1) the probationer remain at their place of residence during non-working hours, and (2) compliance with this condition be monitored by telephonic or electronic signaling devices if the court finds it appropriate. In addition, under 18 U.S.C. § 3563(b)(6), the court may impose a condition that the probationer refrain from frequenting specified kinds of places or from associating unnecessarily with specified persons. Similarly, the court may order that the probationer reside in a specified place. See 18 U.S.C. §§ 3563(13), (14).
Prerelease Custody
Under 18 U.S.C. § 3624(c)(2), the Federal Bureau of Prisons (BOP) is authorized to place a prisoner in home confinement (i.e., home detention) for the shorter of the last 10 percent of the term of imprisonment to be served or 6 months. To the extent practicable, prisoners with lower risk levels and lower needs are to be placed on home confinement for the maximum amount of time permitted.
The Elderly and Family Reunification for Certain Nonviolent Offenders Pilot Program also authorizes the Attorney General to release some or all eligible elderly offenders and eligible terminally ill offenders from BOP facilities to home detention, upon written request from either the BOP or an eligible elderly offender or terminally ill offender. 34 U.S.C. § 60541(g)(1)(B).4
Furthermore, under the First Step Act, Pub. L. No. 115-391, 132 Stat. 5149, eligible prisoners who have earned time credit under the BOP’s risk and needs assessment system may also be placed in prerelease custody, including release to home confinement. 18 U.S.C. § 3624(g)(2)(A). Unless the Director of the BOP provides otherwise, a prisoner placed on home confinement due to earned time credit will remain in home confinement until at least 85% of their sentence is served. Id. at § 3624(g)(2)(A)(iv). If a prisoner placed in prerelease custody on home confinement violates the conditions of home confinement, they may be subject to electronic monitoring. Id. at § 3624(g)(2)(A)(i)(I). To the greatest extent practicable, the BOP must enter into agreements with the United States Probation and Pretrial Services to supervise prisoners placed in home confinement under § 3624(g). 18 U.S.C. § 3624(g)(2)(7).
Under 18 U.S.C. § 3624(c)(3) and an interagency agreement between the Bureau of Prison and the AO, the United States probation system may supervise individuals in prerelease custody through a program called Federal Location Monitoring (FLM). Violations by individuals participating in FLM are reported back to the BOP.
Supervised Release
A term of supervised release after imprisonment may be required by statute or may be imposed at the discretion of the court. 18 U.S.C. § 3583(a). Under 18 U.S.C. § 3583(d), the court is permitted to impose the same discretionary conditions that are authorized under 18 U.S.C. § 3563(b) for probation. Under §§ 3563(b)(6) and (b)(19), the court may impose LM conditions.
An individual whose sentence includes a term of supervised release after imprisonment is released by the BOP to the supervision of a probation officer who supervises the individual released to the degree warranted by the conditions specified by the sentencing court. 18 U.S.C. § 3624(e). Violations by individuals on supervised release are reported to the court.
Intermediate Sanction for Supervision Noncompliance
If an individual violates a condition of probation, the court may, after a hearing and after considering the applicable factors provided in 18 U.S.C. § 3553(a), continue the individual on probation. 18 U.S.C. § 3565(a)(1). The court may also modify the conditions, including any LM condition. Id.
Similarly, as an alternative to incarceration for revocation of a term of supervised release, a court may order the person under supervision to remain at their place of residence during nonworking hours and may order that compliance be monitored by telephone or electronic signaling devices. 18 U.S.C. § 3583(e)(4).
Last Updated: March 2023
Explore the other sections of the Location Monitoring Reference Guide.
1 The court is also authorized to issue an order of release or detention of a material witness. 18 U.S.C. § 3144.
2 Under 18 U.S.C. § 3561(a), “A defendant who has been found guilty of an offense may be sentenced to a term of probation unless (1) the offense is a Class A or B felony and the defendant is an individual; (2) the offense is an offense for which probation has been expressly precluded; or (3) the defendant is sentenced to a term of imprisonment at the same time for the same or a different offense that is not a petty offense.” The statutorily authorized terms of probation are one to five years for a felony; not more than five years for a misdemeanor; and not more than one year for an infraction. 18 U.S.C. § 3561(c).
3 See also Overview of Probation and Supervised Release Conditions, available at https://www.uscourts.gov/services-forms/overview-probation-supervised-release-conditions; U.S.S.G. § 5B1.3.
4 The pilot program has been extended through fiscal year 2023. 34 U.S.C. § 60541(g)(3).