ST. CROIX — The Judiciary of the Virgin Islands must now pay the cost of pretrial electronic monitoring for defendants on house arrest following a recent Supreme Court ruling unless the high court establishes such fees.
The Superior Court cannot require defendants to pay for pretrial electronic monitoring because such fees have not yet been set, according to the Supreme Court’s opinion.
The Supreme Court ruled on the matter while considering a case on appeal from the Superior Court.
Shekil Berthier appealed the Superior Court’s June 4, 2021 order denying his motion to be relieved of pretrial electronic monitoring and the associated costs of the electronic monitoring device. The Supreme Court affirmed the Superior Court’s ordering of electronic monitoring as a condition of pretrial release but reversed the imposition of its costs upon Berthier.
Berthier was released from custody pending trial and placed on 24-hour house arrest with electronic monitoring following his arrest on September 25, 2020 for allegedly sending threatening texts to a man and then shooting into the man’s occupied home. The charges against Berthier were subsequently dismissed without prejudice on December 22, 2022.
Berthier filed a motion on May 4, 2021 to modify his release conditions and remove the electronic monitoring condition or grant him relief from paying the fees associated with electronic monitoring in addition to requesting leave to work. The Superior Court on June 4, 2021 granted Berthier’s request to work but denied his requests to be relieved of electronic monitoring or the costs associated with it. Berthier timely appealed the portion of the order denying his requests to modify the pretrial release conditions.
While the Legislature of the Virgin Islands has clearly authorized the Supreme Court to impose any fee by order or rule, necessarily encompassing pretrial electronic monitoring fees, the Supreme Court has not issued an order or promulgated a rule that establishes an electronic monitoring fee, according to the opinion filed on December 5 by Associate Justice Maria Cabret.
The Supreme Court, therefore, concluded that the Superior Court does not have the authority to impose the costs of pretrial electronic monitoring on a defendant because the statutory authority to do so has been specifically vested to the Supreme Court, which has not yet ordered pretrial electronic monitoring fees.
When asked if the Supreme Court will now establish electronic monitoring fees, Regina de Chabert Petersen, administrator of courts, indicated that the high court issued its decision, is well aware of the impact of its ruling, and will take the appropriate actions it deems necessary.
In the meantime, the Judiciary of the Virgin Islands will have to pay the $10 per day cost of electronic monitoring if the Superior Court orders release under such conditions. Petersen clarified that nothing in the opinion makes it retroactive, so defendants who previously paid these fees will not be reimbursed.
Now that the Judiciary of the Virgin Islands will be required to pay the electronic monitoring fees, it will still be less expensive to the VI government than denying pretrial release considering how much it costs to house a detainee or inmate in the John A. Bell Adult Correctional Facility. The Virgin Islands Bureau of Corrections estimates that it costs $320 per day to house a detainee or inmate in the territory, according to testimony BOC Director Wynnie Testamark presented to the Senate Committee on Budget, Appropriations and Finance during the bureau’s fiscal year 2025 budget hearing on July 9.
The judicial branch expends a minimum of $90,000 annually on a contract for electronic monitoring, according to Petersen. She noted the amount increases based on the number of units requested above the contracted units in a given year, clarifying the cost of the contract is separate from operational costs associated with the salaries of the Office of the Virgin Islands Marshal to administer the program, monitor, and respond.
“In fiscal year 2024, collections associated with electronic monitoring totaled nearly $110,000,” Petersen wrote in an email response to WTJX. “However, those collections go directly into the General Fund and do not offset the court’s expenditure. In fact, the Judiciary does not retain any fees collected and acts only as a pass-through entity on fee collections paid to the General Fund.”
Berthier, who was represented by attorney Adam Christian, of Ogletree, Deakins, Nash, Smoak & Stewart LLC, argued that the Superior Court lacked the legal power to impose upon him the cost of electronic monitoring in the absence of an authorizing rule or statute. The Virgin Islands Department of Justice countered that the fees “may well be considered necessary or appropriate in aid of [the Superior Court’s] jurisdiction” under the Virgin Islands Code, Title 4, Section 83.
While the Superior Court never issued an order directing Berthier to pay fees for the electronic monitoring, he agreed to pay the fees by signing the advice of rights condition sheet, paying $10 a day for monitoring, and furnishing a total of $2,180 toward the cost of use of the tracking device between October 7, 2020 and May 7, 2021.
In support of his contention that imposition upon him of the costs of electronic monitoring must be specifically authorized by statute, Berthier cited a case, People v. Myers, in which the Court of Appeals of Michigan upheld the “court costs” imposed on the appellant because the costs were authorized by statute. Federal courts carry the costs of electronic monitoring, but every jurisdiction except Arizona, Hawaii, Vermont, and the District of Columbia passes at least some of the costs on to defendants. Many jurisdictions require statutory authority to impose the costs of electronic monitoring, while at least one jurisdiction specifically grants the authority to impose such costs by court rule.
While Berthier argued that electronic monitoring costs are not referenced at all in the Virgin Islands Code, the Supreme Court found that it is referenced in Title 5, Section 4509(k)(5), which requires inmates to reimburse the territory for the costs of electronic monitoring devices when an inmate is engaged in permissible work outside of jail and refers to the costs as “obligations.” The statute, however, is applicable to inmates who are convicted, as opposed to pretrial releases, who are still clothed with a presumption of innocence. Further, the territory has a multitude of statutes authorizing the Superior Court’s imposition of bail conditions, the assessment of fees by the clerks and marshals of the Superior Court, as well as the Superior Court’s assessment of fees in a post-sentencing matter. The VI Code authorizes the Supreme Court to assess fees in all cases where fees are not specifically covered by Title 4, Chapter 31.
While the Superior Court has the authority and discretion to require electronic monitoring for certain pretrial releases under the Fourth Amendment, the VI Code, and the express authorization in Rule 5-1 of the Virgin Islands Rule of Criminal Procedure, the Supreme Court ruled that the People of the Virgin Islands may not shift the costs of pretrial electronic monitoring onto a pretrial defendant without a rule or order promulgated by the high court authorizing those electronic monitoring costs.
