Note

Unshackling the Due Process Rights of Asylum-Seekers

The focus of this Note is the government’s excessive use of GPS monitoring ankle bracelets on asylum-seekers through the Intensive Supervision Appearance Program (“ISAP”)—an alternative-to-detention program used by Immigration and Customs Enforcement to supervise certain noncitizens in removal proceedings. This Note explores how the ISAP enrollment process violates the due process rights of asylum-seekers and how these violations have facilitated the excessive use of ankle monitors on these individuals.

The first part of this Note explores ISAP’s initial purpose and the program’s failure to meet it. ISAP originated as a cost-saving, more humane option than detention for certain high-risk noncitizens already detained. Because detaining noncitizens is expensive, ISAP was intended to alleviate some of the financial burden of the detention system by releasing certain detainees from physical detention with GPS monitoring ankle bracelets and supervision. However, ISAP has shifted from its initial focus of removing noncitizens from detention to targeting low-risk asylum-seeking individuals who otherwise would not have been detained. As a result, ISAP has failed to decrease detention costs and failed its initial purpose as an alternative option for noncitizens already detained.

The second part of this Note argues that the excessive enrollment of asylum-seekers in ISAP GPS monitoring is facilitated through due process violations. In particular, this Note argues that the enrollment process violates asylum-seekers’ due process rights by contravening substantive due process, procedural due process, and fundamental fairness requirements. Finally, the Note proposes solutions to the constitutional deficiencies and advocates for returning ISAP to its initial purpose as a true alternative to detention.

A Remedy but Not a Cure: Reevaluating the Status of the Booker Remedial Holding

In a line of cases culminating in United States v. Booker, the Supreme Court identified a Sixth Amendment problem with mandatory sentencing guidelines that used judge-found facts in ways that increased a defendant’s sentence. The Court’s solution for the federal system was to sever and remove the statutory provisions that made the federal Guidelines mandatory and binding on sentencing judges, thus creating a “discretionary” sentencing system.

Despite the key role judicial discretion plays in the constitutionality of our federal sentencing scheme, the Court has never defined what features are necessary for a sentencing guidelines system to be discretionary, and few academics have considered the question. This Note takes up this issue by considering what features could distinguish mandatory and discretionary sentencing systems. It proposes two models for what makes sentencing guidelines discretionary—a “bundle” model and a “default sentence” model—that most closely adhere to what the Court said about the discretion remedy around the time of Booker.

The Note then considers a number of the Court’s recent Guidelines decisions in light of the discretion issue. On their own and in aggregate, these cases enact legal rules, such as procedural requirements and appellate presumptions, that act as nudges towards within-Guidelines sentences. The Note argues that these rules risk violating Booker’s mandate that judges have discretion at sentencing and identifies grounds on which a new Booker-style challenge could be brought if these lines of cases were extended further.

Garbage Pulls Under the Physical Trespass Test

By reintroducing the physical trespass test to the Fourth Amendment search inquiry, United States v. Jones (2012) and Florida v. Jardines (2013) supplemented the Katz privacy test with a property-based trespassory inquiry. Jones asks courts to consider whether police have physically trespassed on a personal effect with an investigatory purpose, and Jardines asks courts to consider whether police have engaged in an unlicensed physical intrusion into a constitutionally protected area, such as the curtilage of a home. This Note addresses one area of doctrinal uncertainty in the wake of Jones and Jardines: garbage pulls, a practice the Supreme Court found in California v. Greenwood (1988) did not constitute a Fourth Amendment search where garbage awaits collection on the curb.

This Note assesses the status of garbage pulls under the physical trespass test. First, it argues that under Jones, household garbage could qualify as an effect because of its status as personal property and its close connection to domestic intimacy. Second, it presents arguments that under Jardines, police likely exceed the boundaries of the implied license by entering the curtilage of a home to seize or investigate garbage. Here, the Note highlights a series of federal and state appellate court decisions that have historically dismissed the importance of the curtilage in cases involving garbage pulls. Ultimately, this Note demonstrates how the physical trespass test as articulated in Jones and Jardines could significantly restrict the permissible scope of garbage pulls.

©Virginia Law Review Association. All rights reserved.