75 Pages Posted: 22 Mar 2021 Last revised: 31 Mar 2022
Date Written: March 20, 2021
Budget constraints, bipartisan desire to curb mass incarceration, and the COVID-19 crisis in prisons have triggered state and federal officials to seek alternatives to incarceration. As a result, invasive electronic surveillance – such as GPS-equipped ankle monitors, smart phone tracking, and suspicionless searches of electronic devices – is often touted as a humane substitute for incarceration. This type of monitoring, which I term “punitive surveillance,” allows government officials, law enforcement and for-profit companies to track, record, share and analyze the location, biometric data and other meta-data of thousands of people on probation and parole. With virtually no legal oversight or restraint, punitive surveillance deprives people of fundamental rights, including privacy, speech, and liberty.
Building on the critique that this type of surveillance is a new manifestation of racialized carceral control, this Article offers three contributions: First, drawing on original empirical research of almost 250 public agency records governing the operation of electronic ankle monitoring, this Article reveals non-obvious ways that punitive surveillance, like incarceration, strips people of basic rights and liberties. In particular, the records show how electronic monitoring restricts movement, limits privacy, undermines family and social relationships, jeopardizes financial security and results in repeated loss of freedom. Unlike traditional probation and parole, punitive surveillance is more intensive, restrictive and dependent on private surveillance companies. Second, this Article explains how, and why, courts’ labeling of such surveillance as a “condition” of punishment or a regulatory measure stems from a misunderstanding of this surveillance technology and punishment jurisprudence. Third, this Article examines whether a fundamental rights analysis, a regulatory response or an abolitionist approach is the most effective way of limiting – if not outright eliminating – punitive surveillance.
Keywords: punishment, privacy, civil rights, criminal procedure, constitutional rights, surveillance, tech
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