Fourth Amendment Constraints on the Technological Monitoring of Convicted Sex Offenders

New Criminal Law Review, Vol. 21, Summer 2018 (Forthcoming)

U of Michigan Law & Econ Research Paper Paper No. 18-016

43 Pages Posted: 19 Jun 2018

See all articles by Ben A. McJunkin

Ben A. McJunkin

University of Michigan Law School

J.J. Prescott

University of Michigan Law School

Date Written: April 1, 2018

Abstract

More than forty U.S. states currently track at least some of their convicted sex offenders using GPS devices. Many offenders will be monitored for life. The burdens and expense of living indefinitely under constant technological monitoring have been well documented, but most commentators have assumed that these burdens were of no constitutional moment because states have characterized such surveillance as “civil” in character — and courts have seemed to agree. In 2015, however, the Supreme Court decided in Grady v. North Carolina that attaching a GPS monitoring device to a person was a Fourth Amendment search, notwithstanding the ostensibly civil character of the surveillance. Grady left open the question whether the search — and the state’s technological monitoring program more generally — was constitutionally reasonable. This Essay considers the doctrine and theory of Fourth Amendment reasonableness as it applies to both current and envisioned sex offender monitoring technologies to evaluate whether the Fourth Amendment may serve as an effective check on post-release monitoring regimes.

Keywords: Fourth Amendment, sex offenders, monitoring, GPS technology, search, privacy, post-release regulations

Suggested Citation

McJunkin, Ben A. and Prescott, J.J., Fourth Amendment Constraints on the Technological Monitoring of Convicted Sex Offenders (April 1, 2018). New Criminal Law Review, Vol. 21, Summer 2018 (Forthcoming); U of Michigan Law & Econ Research Paper Paper No. 18-016. Available at SSRN: https://ssrn.com/abstract=3198319

Ben A. McJunkin

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

J.J. Prescott (Contact Author)

University of Michigan Law School ( email )

3170 South Hall
701 S. State St.
Ann Arbor, MI 48109
United States
734-763-2326 (Phone)

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