Kate Weisburd

Punitive Surveillance

Budget constraints, bipartisan desire to address 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, smartphone 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, search, 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 punitive surveillance is a form of racialized carceral control, this Article makes 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 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 and punishment jurisprudence. Third, and most ambitiously, this Article raises the question of 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.

Introduction

Four months before he was killed by police in Atlanta in June 2020, Rayshard Brooks spoke in an interview about his time on probation and an electronic ankle monitor.1 1.Sam Hotchkiss, Rayshard Brooks: In His Own Words, Reconnect (June 17, 2020), https://reconnect.io/rayshard-brooks-in-his-own-words [https://perma.cc/8HQS-BR7S].Show More Mr. Brooks explained that monitoring and probation made it “impossible” to lead his life and made him feel like an animal.2 2.Randi Kaye, Rayshard Brooks Opened Up About the Struggles of Life After Incarceration in an Interview Before His Death, CNN (June 17, 2020), https://www.cnn.com/‌2020/06/17/us/rayshard-brooks-interview-reconnect-life-after-incarceration/index.html [https://perma.cc/2JCD-UXN6].Show More Wearing a monitor was stigmatizing, making it hard for him to get a job and provide for his three children and wife.3 3.Hotchkiss, supra note 1.Show More While his name is now synonymous with the brutality of police killings of unarmed Black men, it might also be a reminder of the burden of living under criminal court control.

Mr. Brooks’ experience echoes the reality of hundreds of thousands of people in the American criminal legal system who are ordered to wear GPS- and microphone-equipped ankle monitors that record and broadcast their physical location, provide DNA samples, and submit to suspicionless searches of their electronic devices. This particular type of surveillance—what I term “punitive surveillance”—is a form of incarceration facilitated by invasive technology and for-profit companies. To be sure, many other forms of state surveillance are also punitive and restrictive, but this Article focuses specifically on the ways that the criminal legal system uses technology as a form of incarceration. Drawing on original empirical research of almost 250 state and local policies governing electronic monitoring of people on court supervision, this Article exposes the extent to which punitive surveillance, like physical incarceration, limits—and sometimes outright extinguishes—a person’s basic constitutional rights, such as speech, movement, and assembly.4 4.Kate Weisburd, Electronic Prisons: The Operation of Ankle Monitoring in the Criminal Legal System (Geo. Wash. U. L. Sch. 2021) [hereinafter Electronic Prisons], https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3930296 [https://perma.cc/E469-GMU8].Show More

Fueled by the COVID-19 pandemic and increasingly bipartisan support for decarceration efforts, punitive surveillance is often touted as a humane alternative to incarceration and is expanding substantially with little oversight or regulation.5 5.See Cara Tabachnick, Covid-19 Created a Bigger Market for Electronic Ankle Monitors,Bloomberg L. (July 14, 2020), https://www.bloomberg.com/news/articles/2020-07-14/coronavirus-creates-big-market-for-electronic-ankle-monitors [https://perma.cc/6GVY-CXZG] (estimating that there were 25% to 30% more people wearing electronic monitors worldwide in July 2020 than a few months prior); Eli Hager, Where Coronavirus Is Surging—and Electronic Surveillance, Too, Marshall Project (Nov. 22, 2020), https://www.themarshallproject.org/2020/11/22/where-coronavirus-is-surging-and-electronic-surveillance-too [https://perma.cc/7UEX-ZYYX] (“In Chicago, . . . the number of people on electronic monitoring jumped from 2,417 before the pandemic to 3,365 by mid-June . . . .”); Jenifer B. McKim, ‘Electronic Shackles’: Use of GPS Monitors Skyrockets in Massachusetts Justice System, GBH News (Aug. 10, 2020), https://www.wgbh.org/news/local-news/2020/08/10/electronic-shackles-use-of-gps-monitors-skyrockets-in-massachusetts-justice-system [https://perma.cc/SJE3-3GLS] (quoting a Massachusetts Parole Board official advocating for expanded use of GPS devices as a strategy “balancing the interests of public safety, accountability, and release from incarceration”).Show More The diminishment of rights that accompanies punitive surveillance is generally seen as the reasonable price someone pays to avoid incarceration, as is true with other forms of court supervision.6 6.This position is advanced by commentators, courts, and scholars alike. See, e.g., Samuel R. Wiseman, Pretrial Detention and the Right to Be Monitored, 123 Yale L.J. 1344, 1398 (2014) (suggesting that monitoring offers “a fairer, more effective, and more efficient alternative to money bail”); United States v. Barnett, 415 F.3d 690, 691–92 (7th Cir. 2005) (finding that “a blanket waiver of Fourth Amendment rights” was valid because “imprisonment is a greater invasion of personal privacy than being exposed to searches of one’s home on demand”); People v. Nachbar, 3 Cal. App. 5th Supp. 1122, 1129 (Cal. Ct. App. 2016) (upholding electronic search condition on grounds that defendant “accepted probation in lieu of additional punishment”); United States v. Smith, 414 F.2d 630, 636 (5th Cir. 1969) (explaining that defendant “could have rejected probation and elected prison” and that, having “chose[n] to enjoy the benefits of probation,” the defendant had to “endure its restrictions”); Schacht v. United States, rev’d on other grounds, 398 U.S. 58 (1970); Editorial Board, Editorial: New App-Based Defendant-Monitoring Program Is a Promising Alternative to Bail, St. Louis Post-Dispatch (Jan. 21, 2020), https://www.stltoday.com/opinion/editorial/editorial-new-app-based-defendant-monitoring-program-is-a-promising-alternative-to-bail/article_7466fc29-ef8e-5875-8567-3372b8a904ff.html [https://perma.cc/TT96-6UN2] (referring to a new electronic monitoring program as an “effective but less intrusive” alternative to money bail that “appears to address more concerns than it creates”).Show More

Yet there is a limit on the erosion of rights that accompanies punishment. In the United States, citizenship is defined by the “right to have rights[,]” and it is “not a license that expires upon misbehavior.”7 7.Trop v. Dulles, 356 U.S. 86, 92, 102 (1958).Show More Punitive surveillance, however, reveals a significant but undertheorized gap in punishment jurisprudence: how to define, regulate, and limit punitive and carceral experiences that do not occur behind prison walls. Beyond the Eighth Amendment and the Ex Post Facto Clause, there are no obvious backstops on the erosion of fundamental rights and liberties that are part and parcel of punitive surveillance.8 8.See generally Tonja Jacobi, Song Richardson & Gregory Barr, The Attrition of Rights Under Parole, 87 S. Cal. L. Rev. 887 (2014) (describing the erosion of constitutional rights of people on parole).Show More

The lack of a more robust and coherent jurisprudence may stem from the general perception that people subject to punitive surveillance would otherwise be incarcerated, where the deprivation of fundamental rights is greater. There is no empirical evidence, however, that monitoring is consistently used as an alternative to incarceration.9 9.See Kate Weisburd, Sentenced to Surveillance: Fourth Amendment Limits on Electronic Monitoring, 98 N.C. L. Rev. 717, 740, 745–46 (2020) [hereinafter Weisburd, Sentenced to Surveillance]; Avlana K. Eisenberg, Mass Monitoring, 90 S. Cal. L. Rev. 123, 157 (2017); Gabriela Kirk, The Limits of Expectations and the Minimization of Collateral Consequences: The Experience of Electronic Home Monitoring, 68 Soc. Probs. 642, 644 (2021).Show More In a world without monitors, perhaps some people would otherwise be incarcerated, but many would (or should) not be.10 10.Maya Schenwar & Victoria Law, Prison by Any Other Name: The Harmful Consequences of Popular Reforms 30 (2020); Christine S. Scott-Hayward & Erin Eife, Correctional and Sentencing Law Commentary: Electronic Monitoring, 57 Crim. L. Bull. (2021).Show More In practice, punitive surveillance is often part of criminal punishment, imposed on top of probation, parole or supervised release.11 11.See Weisburd, Sentenced to Surveillance, supra note 9, at 741; Schenwar & Law, supra note 10, at 30–32; see infraSection I.A.Show More It is almost never a tradeoff between one day of electronic monitoring versus one day in prison—it is most often both for varying amounts of time.12 12.See Erin Murphy, Paradigms of Restraint, 57 Duke L.J. 1321, 1323 (2008) (critiquing the use of a one-to-one tradeoff to evaluate purported alternatives to physical incarceration).Show More

Likewise, even if monitoring were used as a genuine alternative to incarceration, the alternative remains “a form of coded inequity and carceral control.”13 13.Ruha Benjamin, Race After Technology: Abolitionist Tools for the New Jim Code 167 (2019).Show More As Professor Michelle Alexander explains, “digital prisons are to mass incarceration what Jim Crow was to slavery.”14 14.Michelle Alexander,Opinion, The Newest Jim Crow, N.Y. Times (Nov. 8, 2018), https://www.nytimes.com/2018/11/08/opinion/sunday/criminal-justice-reforms-race-technology.html [https://perma.cc/45J8-TZVG].Show More Simply because an enslaved person would choose to live with their families, albeit subject to “whites only signs” and segregation, does not justify Jim Crow.15 15.Id.Show More The same can be said about the choice between incarceration and punitive surveillance.

Punitive surveillance has become not so much an actual alternative to incarceration, but rather an “alternative form of incarceration.”16 16.See James Kilgore, Let’s Fight for Freedom from Electronic Monitors and E-Carceration, Truthout (Sept. 4, 2019), https://truthout.org/articles/lets-fight-for-freedom-from-electronic-monitors-and-e-carceration [https://perma.cc/YBE2-Y4P7].Show More As the empirical findings in this Article demonstrate, the carceral experience is no longer defined by physical walls and prison bars. And as incarceration increasingly operates outside of physical prisons, the punishment landscape is shifting.

This Article reveals three growing, but underappreciated, fissures in punishment jurisprudence. First, treating punitive surveillance as a condition of punishment (as compared to punishment itself) that need only be “reasonably related” to a purpose of punishment is inaccurate and relies on circular logic that almost always results in a finding of constitutionality.17 17.See infra Section III.A.Show More Second, treating punitive surveillance as a regulatory measure (akin to collateral consequences or civil restraints) is often inapplicable and inappropriately removes it from Eighth Amendment and Ex Post Facto Clause protections.18 18.See infraSection III.B.Show More Finally, treating punitive surveillance as punishment (which it is) also does little to limit its scope and impact.19 19.See infra Section III.C.Show More

As a result of these fissures, punitive surveillance has escaped meaningful scrutiny. Given the importance of the rights at stake, and that those most impacted—people convicted of crimes—are also the most disenfranchised,20 20.See Richardson v. Ramirez, 418 U.S. 24, 56 (1974) (holding that the Equal Protection Clause does not prohibit excluding people convicted of felonies from voting).Show More closer scrutiny is critical.21 21.See Erwin Chemerinsky, The Constitution in Authoritarian Institutions, 32 Suffolk U. L. Rev. 441, 459–61 (1999) (making the case for closer judicial review of the abridgment of rights for people in prisons and other institutions).Show More A small number of judges, community organizers, and scholars, myself included, have critiqued punitive surveillance on privacy and dignity grounds, as well as the ways it reproduces race and class subordination.22 22.See, e.g.,United States v. Polouizzi, 697 F. Supp. 2d 381, 389 (E.D.N.Y. 2010) (“Required wearing of an electronic bracelet, every minute of every day, with the government capable of tracking a person . . . as if he were a feral animal would be considered a serious limitation on freedom by most liberty-loving Americans.”); see also Chaz Arnett, From Decarceration to E-Carceration, 41 Cardozo L. Rev. 641, 675 (2019) (raising the concern that correctional electronic surveillance poses the risk of further social marginalization); Catherine Crump, Tracking the Trackers: An Examination of Electronic Monitoring of Youth in Practice, 53 U.C. Davis L. Rev. 795, 798–99 (2019) (questioning the suitability of electronic monitoring for juveniles); Eisenberg, supranote 9, at 174 (suggesting that monitoring programs may have a disproportionate effect on the poor); Weisburd, Sentenced to Surveillance, supranote 9, at 759–60 (linking electronic monitoring to historical racialized means of control); Ben A. McJunkin & J.J. Prescott, Fourth Amendment Constraints on the Technological Monitoring of Convicted Sex Offenders, 21 New Crim. L. Rev. 379, 419 (2018) (rejecting the idea that labeling monitoring as “punishment” reduces a monitored person’s privacy interest); Kate Weisburd, Monitoring Youth: The Collision of Rights and Rehabilitation, 101 Iowa L. Rev. 297, 303 (2015) (discussing how monitoring negatively impacts young people); Murphy, supra note 12, at 1323 (addressing the dignity harms imposed by monitoring); James Kilgore & Emmett Sanders, Ankle Monitors Aren’t Humane. They’re Another Kind of Jail, Wired (Aug. 4, 2018), https://www.wired.com/story/opinion-ankle-monitors-are-another-kind-of-jail [https://perma.cc/X3NU-7F7F] (similarly elaborating on the lesser-known ways that electronic monitoring erodes one’s rights).Show More This Article builds on those critiques by addressing the range of fundamental rights that are abridged or extinguished by punitive surveillance,23 23.See Jacobi, Richardson & Barr, supra note 8, at 887.Show More and the ways in which it reproduces the prison experience, even if to a lesser degree.

This Article proceeds in four parts. Drawing on the findings of original empirical research, Part I reveals how punitive surveillance operates, characterized by invasive technology, restrictive rules, lack of transparency, and the power of third parties, including government agencies and for-profit companies. Part II details the ways that the privacy, speech, liberty, and due process limitations are similar in kind, if not degree, to prison restrictions. Part III addresses doctrinal infirmities and explains that punitive surveillance is neither a regulatory restraint nor a condition of punishment, but rather, is correctly characterized as punishment itself. Part IV evaluates available constitutional and regulatory limits on punishment that occur outside of prison walls, while also cautioning that reform risks legitimating punitive surveillance and undermining abolition efforts.

  1. Sam Hotchkiss, Rayshard Brooks: In His Own Words, Reconnect (June 17, 2020), https://reconnect.io/rayshard-brooks-in-his-own-words [https://perma.cc/8HQS-BR7S]. ↑
  2. Randi Kaye, Rayshard Brooks Opened Up About the Struggles of Life After Incarceration in an Interview Before His Death,
    CNN

    (June 17, 2020), https://www.cnn.com/‌2020/06/17/us/rayshard-brooks-interview-reconnect-life-after-incarceration/index.html [https://perma.cc/2JCD-UXN6]. ↑

  3. Hotchkiss, supra note 1. ↑
  4. Kate Weisburd, Electronic Prisons: The Operation of Ankle Monitoring in the Criminal Legal System (Geo. Wash. U. L. Sch. 2021) [hereinafter Electronic Prisons], https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3930296 [https://perma.cc/E469-GMU8]. ↑
  5. See Cara Tabachnick, Covid-19 Created a Bigger Market for Electronic Ankle Monitors, Bloomberg L. (July 14, 2020), https://www.bloomberg.com/news/articles/2020-07-14/coronavirus-creates-big-market-for-electronic-ankle-monitors [https://perma.cc/6GVY-CXZG] (estimating that there were 25% to 30% more people wearing electronic monitors worldwide in July 2020 than a few months prior); Eli Hager, Where Coronavirus Is Surging—and Electronic Surveillance, Too, Marshall Project (Nov. 22, 2020), https://www.themarshallproject.org/2020/11/22/where-coronavirus-is-surging-and-electronic-surveillance-too [https://perma.cc/7UEX-ZYYX] (“In Chicago, . . . the number of people on electronic monitoring jumped from 2,417 before the pandemic to 3,365 by mid-June . . . .”); Jenifer B. McKim, ‘Electronic Shackles’: Use of GPS Monitors Skyrockets in Massachusetts Justice System, GBH News (Aug. 10, 2020), https://www.wgbh.org/news/local-news/2020/08/10/electronic-shackles-use-of-gps-monitors-skyrockets-in-massachusetts-justice-system [https://perma.cc/SJE3-3GLS] (quoting a Massachusetts Parole Board official advocating for expanded use of GPS devices as a strategy “balancing the interests of public safety, accountability, and release from incarceration”). ↑
  6. This position is advanced by commentators, courts, and scholars alike. See, e.g., Samuel R. Wiseman, Pretrial Detention and the Right to Be Monitored, 123 Yale L.J. 1344, 1398 (2014) (suggesting that monitoring offers “a fairer, more effective, and more efficient alternative to money bail”); United States v. Barnett, 415 F.3d 690, 691–92 (7th Cir. 2005) (finding that “a blanket waiver of Fourth Amendment rights” was valid because “imprisonment is a greater invasion of personal privacy than being exposed to searches of one’s home on demand”); People v. Nachbar, 3 Cal. App. 5th Supp. 1122, 1129 (Cal. Ct. App. 2016) (upholding electronic search condition on grounds that defendant “accepted probation in lieu of additional punishment”); United States v. Smith, 414 F.2d 630, 636 (5th Cir. 1969) (explaining that defendant “could have rejected probation and elected prison” and that, having “chose[n] to enjoy the benefits of probation,” the defendant had to “endure its restrictions”); Schacht v. United States, rev’d on other grounds, 398 U.S. 58 (1970); Editorial Board, Editorial: New App-Based Defendant-Monitoring Program Is a Promising Alternative to Bail, St. Louis Post-Dispatch (Jan. 21, 2020), https://www.stltoday.com/opinion/editorial/editorial-new-app-based-defendant-monitoring-program-is-a-promising-alternative-to-bail/article_7466fc29-ef8e-5875-8567-3372b8a904ff.html [https://perma.cc/TT96-6UN2] (referring to a new electronic monitoring program as an “effective but less intrusive” alternative to money bail that “appears to address more concerns than it creates”). ↑
  7. Trop v. Dulles, 356 U.S. 86, 92, 102 (1958). ↑
  8. See generally Tonja Jacobi, Song Richardson & Gregory Barr, The Attrition of Rights Under Parole, 87 S. Cal. L. Rev. 887 (2014) (describing the erosion of constitutional rights of people on parole). ↑
  9. See Kate Weisburd, Sentenced to Surveillance: Fourth Amendment Limits on Electronic Monitoring, 98 N.C. L. Rev. 717, 740, 745–46 (2020) [hereinafter Weisburd, Sentenced to Surveillance]; Avlana K. Eisenberg, Mass Monitoring, 90 S. Cal. L. Rev. 123, 157 (2017); Gabriela Kirk, The Limits of Expectations and the Minimization of Collateral Consequences: The Experience of Electronic Home Monitoring, 68 Soc. Probs. 642, 644 (2021). ↑
  10. Maya Schenwar & Victoria Law, Prison by Any Other Name: The Harmful Consequences of Popular Reforms 30 (2020); Christine S. Scott-Hayward & Erin Eife, Correctional and Sentencing Law Commentary: Electronic Monitoring, 57 Crim. L. Bull. (2021). ↑
  11. See Weisburd, Sentenced to Surveillance, supra note 9, at 741; Schenwar & Law, supra note 10, at 30–32; see infra Section I.A. ↑
  12. See Erin Murphy, Paradigms of Restraint, 57 Duke L.J. 1321, 1323 (2008) (critiquing the use of a one-to-one tradeoff to evaluate purported alternatives to physical incarceration). ↑
  13. Ruha Benjamin, Race After Technology: Abolitionist Tools for the New Jim Code 167 (2019). ↑
  14. Michelle Alexander, Opinion, The Newest Jim Crow, N.Y. Times (Nov. 8, 2018), https://www.nytimes.com/2018/11/08/opinion/sunday/criminal-justice-reforms-race-technology.html [https://perma.cc/45J8-TZVG]. ↑
  15. Id. ↑
  16. See James Kilgore, Let’s Fight for Freedom from Electronic Monitors and E-Carceration, Truthout (Sept. 4, 2019), https://truthout.org/articles/lets-fight-for-freedom-from-electronic-monitors-and-e-carceration [https://perma.cc/YBE2-Y4P7]. ↑
  17. See infra Section III.A. ↑
  18. See infra Section III.B. ↑
  19. See infra Section III.C. ↑
  20. See Richardson v. Ramirez, 418 U.S. 24, 56 (1974) (holding that the Equal Protection Clause does not prohibit excluding people convicted of felonies from voting). ↑
  21. See Erwin Chemerinsky, The Constitution in Authoritarian Institutions, 32 Suffolk U. L. Rev. 441, 459–61 (1999) (making the case for closer judicial review of the abridgment of rights for people in prisons and other institutions). ↑
  22. See, e.g.,United States v. Polouizzi, 697 F. Supp. 2d 381, 389 (E.D.N.Y. 2010) (“Required wearing of an electronic bracelet, every minute of every day, with the government capable of tracking a person . . . as if he were a feral animal would be considered a serious limitation on freedom by most liberty-loving Americans.”); see also Chaz Arnett, From Decarceration to E-Carceration, 41 Cardozo L. Rev. 641, 675 (2019) (raising the concern that correctional electronic surveillance poses the risk of further social marginalization); Catherine Crump, Tracking the Trackers: An Examination of Electronic Monitoring of Youth in Practice, 53 U.C. Davis L. Rev. 795, 798–99 (2019) (questioning the suitability of electronic monitoring for juveniles); Eisenberg, supranote 9, at 174 (suggesting that monitoring programs may have a disproportionate effect on the poor); Weisburd, Sentenced to Surveillance, supranote 9, at 759–60 (linking electronic monitoring to historical racialized means of control); Ben A. McJunkin & J.J. Prescott, Fourth Amendment Constraints on the Technological Monitoring of Convicted Sex Offenders, 21 New Crim. L. Rev. 379, 419 (2018) (rejecting the idea that labeling monitoring as “punishment” reduces a monitored person’s privacy interest); Kate Weisburd, Monitoring Youth: The Collision of Rights and Rehabilitation, 101 Iowa L. Rev. 297, 303 (2015) (discussing how monitoring negatively impacts young people); Murphy, supra note 12, at 1323 (addressing the dignity harms imposed by monitoring); James Kilgore & Emmett Sanders, Ankle Monitors Aren’t Humane. They’re Another Kind of Jail, Wired (Aug. 4, 2018), https://www.wired.com/story/opinion-ankle-monitors-are-another-kind-of-jail [https://perma.cc/X3NU-7F7F] (similarly elaborating on the lesser-known ways that electronic monitoring erodes one’s rights). ↑

  23. See Jacobi, Richardson & Barr, supra note 8, at 887. ↑

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