Punitive Surveillance, 2022

Disciplinary Self-Help Litigation Manual - Header

• Locations: United States of America -> Virginia United States of America • Topics: COVID-19, Bail Bonds, GPS Tracking Device, Electronic Surveillance, Bail/Pretrial Release, Effects of Mass Incarceration

Download original document:
Brief thumbnail

Document text

This text is machine-read, and may contain errors. Check the original document to verify accuracy.

PUNITIVE SURVEILLANCE
Kate Weisburd*
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
* Associate Professor of Law, the George Washington University Law School. For helpful
feedback and conversations, I am grateful to Michael B. Abramowicz, Chaz Arnett, Jeremy
Bearer-Friend, Jeffery Bellin, Robert Brauneis, Samuel W. Buell, Jenny Carroll, Erin Collins,
Catherine Crump, Beth Colgan, Fiona Doherty, Avlana Eisenberg, Roger A. Fairfax, Barry
Friedman, Andrew Guthrie Ferguson, Daniel Harawa, Danielle Jefferis, Vida Johnson, Anil
Kalhan, Dmitry Karshtedt, Orin Kerr, James Kilgore, John D. King, Cynthia Lee, Cortney
Lollar, Kathryn E. Miller, Saira Mohamed, Erin Murphy, Ngozi Okidegbe, Lucious T. Outlaw
III, Jenny Roberts, Andrea Roth, Emmett Sanders, Jonathan Simon, Maneka Sinha, Peter
Smith, Daniel Solove, Matthew Tokson, Charles Tyler and participants at the 2020 CrimFest,
2020 Decarceration Roundtable, and faculty workshops at George Washington Law School
and Drexel Law School. I am especially indebted to my terrific team of research assistants:
Samrin Ali, Varun Bhadha, Matthew Clauson, Jeanmarie Elican, Fatima Kahn, Kendall
Lawrenz, Brooke Pemberton, Luc Pierre-Louis, Rebecca Ringler, Jordan Schaer, Mikayla
Sherman, Jessica Sullivan, and Sarah Wohlsdorf. Special thanks to the wonderful editors at
the Virginia Law Review.

147

148

Virginia Law Review

[Vol. 108:147

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.............................................................................. 149
I. THE ARCHITECTURE OF PUNITIVE SURVEILLANCE ..................... 153
A. How Punitive Surveillance Operates ................................ 154
B. Research Methodology ..................................................... 159
C. Research Findings ............................................................ 159
1. Invasive ...................................................................... 160
2. Restrictive .................................................................. 163
3. Third-Party Power and Invisibility ............................. 168
D. Research Limitations ........................................................ 171
II. THE CARCERAL NATURE OF PUNITIVE SURVEILLANCE ............. 173
A. Privacy Restrictions .......................................................... 174
B. Speech Restrictions ........................................................... 177
C. Liberty Restrictions .......................................................... 179
D. Due Process Restrictions ................................................. 182
III. INCOHERENCIES IN PUNISHMENT JURISPRUDENCE ................... 184
A. Punitive Surveillance as a Condition of Punishment ....... 185
B. Punitive Surveillance as Regulatory................................. 190
C. Punitive Surveillance as Punishment ............................... 193
IV. LIMITS ON PUNITIVE SURVEILLANCE ...................................... 196
A. Fortified Eighth Amendment Limits ................................. 196
B. Fundamental Rights Limits ............................................... 201
C. Regulatory Limits ............................................................. 202
D. Beyond Limits: Punitive Surveillance Abolition .............. 205
CONCLUSION ................................................................................. 206
APPENDIX: RECORDS IN STUDY ..................................................... 207

2022]

Punitive Surveillance

149

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 Mr. Brooks explained that monitoring and
probation made it “impossible” to lead his life and made him feel like an
animal.2 Wearing a monitor was stigmatizing, making it hard for him to
get a job and provide for his three children and wife.3 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
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

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/E469GMU8].

150

Virginia Law Review

[Vol. 108:147

oversight or regulation.5 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
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
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
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/2020-0714/coronavirus-creates-big-market-for-electronic-ankle-monitors [https://perma.cc/6GVYCXZG] (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-andelectronic-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 midJune . . . .”); 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-gpsmonitors-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/editorialnew-app-based-defendant-monitoring-program-is-a-promising-alternative-tobail/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).

2022]

Punitive Surveillance

151

no obvious backstops on the erosion of fundamental rights and liberties
that are part and parcel of punitive surveillance.8
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 In a world without
monitors, perhaps some people would otherwise be incarcerated, but
many would (or should) not be.10 In practice, punitive surveillance is often
part of criminal punishment, imposed on top of probation, parole or
supervised release.11 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
Likewise, even if monitoring were used as a genuine alternative to
incarceration, the alternative remains “a form of coded inequity and
carceral control.”13 As Professor Michelle Alexander explains, “digital
prisons are to mass incarceration what Jim Crow was to slavery.”14
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 The same can be said about the choice between
incarceration and punitive surveillance.

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-racetechnology.html [https://perma.cc/45J8-TZVG].
15
Id.

152

Virginia Law Review

[Vol. 108:147

Punitive surveillance has become not so much an actual alternative to
incarceration, but rather an “alternative form of incarceration.”16 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 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 Finally, treating punitive surveillance
as punishment (which it is) also does little to limit its scope and impact.19
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 closer scrutiny is critical.21 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 This Article builds on those
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-electronicmonitors-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

2022]

Punitive Surveillance

153

critiques by addressing the range of fundamental rights that are abridged
or extinguished by punitive surveillance,23 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.
I. THE ARCHITECTURE OF PUNITIVE SURVEILLANCE
The use of electronic surveillance in the criminal legal system is in its
heyday. This rise may be attributed to several factors: cash bail reform,
the COVID-19 pandemic, budget cuts, and growing efforts to find
alternatives to incarceration and increase the efficiency of court
supervision.24 To better understand how electronic surveillance functions

monitoring for juveniles); Eisenberg, supra note 9, at 174 (suggesting that monitoring
programs may have a disproportionate effect on the poor); Weisburd, Sentenced to
Surveillance, supra note 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-anklemonitors-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.
24
See Schenwar & Law, supra note 10, at 19, 26–27; Jenny E. Carroll, Beyond Bail, 73 Fla.
L. Rev. 143, 174–76 (2021) (describing the ways that monetary bail is being replaced with
non-monetary conditions of release); James Kilgore, As the U.S. Scrambles to Slow
Coronavirus, We Should Be Wary of Increased Surveillance, Appeal (Mar. 23, 2020),

154

Virginia Law Review

[Vol. 108:147

within the criminal legal system, a team of research assistants and I
collected local and state policies governing the use of surveillance
technology in the context of pretrial release, probation, and parole. After
providing a general overview of punitive surveillance, this Part describes
our research methodology, as well as our findings.
A. How Punitive Surveillance Operates
All fifty states, the federal government, and the District of Columbia
use some form of electronic monitoring to track the movement and
activities of people on pretrial release, probation, and parole.25 According
to a Pew Charitable Trust report, there were around 131,000 people on
electronic monitors in 2015, which represented a 140% increase over the
prior ten years.26 The number of people on monitors today is likely much
higher, as monitoring has proliferated and is used in juvenile court and
immigration proceedings.27 While some individual agencies track the
number of people on monitors, there is no comprehensive statistical
portrait of how many people are on monitors in the United States today,
much less any demographic data.
Current data from a handful of jurisdictions reflect the extent to which
monitors are used. For example, in Florida, there were 5,403 people on
probation who were on GPS monitors in 2019.28 In 2018, there were
11,130 people on probation in Marion County, Indiana,29 and 4,814
people on probation in Colorado that were on monitors.30 A total of 3,287
people on probation and parole in Michigan were also on monitors in

https://theappeal.org/coronavirus-covid-19-surveillance-electronic-monitoring
[https://perma.cc/6UM4-QBLB]; Hager, supra note 5.
25
See The Pew Charitable Trusts, Use of Electronic Offender-Tracking Devices Expands
Sharply 1 (2016), https://www.pewtrusts.org/-/media/assets/2016/10/use_of_electronic_
offender_tracking_devices_expands_sharply.pdf [https://perma.cc/Y2UW-W3GU].
26
Id. at 3.
27
Ava Kofman, Digital Jail: How Electronic Monitoring Drives Defendants into Debt, N.Y.
Times Mag. (July 3, 2019), https://www.nytimes.com/2019/07/03/magazine/digital-jailsurveillance.html [https://perma.cc/VS7B-4P7Y]; Crump, supra note 22, at 797–98; Tosca
Giustini et al., Immigration Cyber Prisons: Ending the Use of Electronic Ankle Shackles 7
(2021), https://static1.squarespace.com/static/5a33042eb078691c386e7bce/t/60ec661ec5783
26ec3032d52/1626105377079/Immigration+Cyber+Prisons+report.pdf
[https://perma.cc/9GYC-4EVM].
28
Electronic Prisons, supra note 4, at 3.
29
Id.
30
Id.

2022]

Punitive Surveillance

155

2018.31 In Massachusetts, over 4,100 people were on monitors as of
2020.32 If these jurisdictions are any indication, the number of people on
monitors at any given time is high and increasing.
Some current data, albeit very limited, also reflects who is being
monitored. In San Francisco, California, Black people make up roughly
3% of the city’s population but almost 50% of the people on electronic
monitors.33 In Cook County, Illinois, 23% of the population is Black, “but
over 74% of those on electronic monitoring (and in jail) are Black.”34
Punitive surveillance takes a few forms:
(1) Radio frequency monitoring tracks whether a person is at a
particular location, most often their home.35 This technology is
binary—the surveillance simply confirms someone’s presence at a
particular location. It is most often used to verify compliance with
house arrest.36 Radio frequency monitoring is declining in use,
whereas GPS-equipped ankle monitors and smartphone applications
are on the rise.37
(2) GPS-equipped ankle monitoring relies on cellphone towers and
satellites to “pinpoint the actual location of the offender and track an
offender’s movements over time.”38 Some ankle monitors also have
audio and listening features.39

Id.
McKim, supra note 5.
33
James Kilgore, Emmett Sanders & Kate Weisburd, The Case Against E-carceration,
Inquest (July 30, 2021), https://inquest.org/the-case-against-e-carceration [https://perma.cc/
R5L5-2NH7].
34
Sarah Staudt, 10 Facts About Pretrial Electronic Monitoring in Cook County, Chi.
Appleseed (Sept. 22, 2021), https://www.chicagoappleseed.org/2021/09/22/10-facts-aboutpretrial-electronic-monitoring-in-cook-county [https://perma.cc/D2NE-4THC].
35
The Pew Charitable Trusts, supra note 25, at 2.
36
See Crump, supra note 22, at 807.
37
Electronic Prisons, supra note 4, at 4.
38
See Int’l Ass’n of Chiefs of Police, Tracking Sex Offenders with Electronic Monitoring
Technology: Implications and Practical Uses for Law Enforcement 3, 5 (2008).
39
Kira Lerner, Chicago Is Tracking Kids with GPS Monitors That Can Call and Record
Them Without Consent, Appeal (Apr. 8, 2019), https://theappeal.org/chicago-electronicmonitoring-wiretapping-juveniles [https://perma.cc/2G62-RPGW]; Joshua Kaplan, D.C.
Defendants Wear Ankle Monitors That Can Record Their Every Word and Motion, Wash.
City Paper (Oct. 8, 2019), https://washingtoncitypaper.com/article/178161/dc-agencypurchases-ankle-monitors-that-can-record-defendants-every-word-and-motion
[https://perma.cc/5QB6-TVMZ].
32

156

Virginia Law Review

[Vol. 108:147

(3) Smartphone surveillance applications allow for both location
tracking and communication between agents and defendants, but
without the use of a GPS-equipped ankle monitor.40 This version of
monitoring sometimes relies on voice verification and facial
recognition methods to ensure that the cellphone is connected to the
monitored individual.41 Some jurisdictions are increasingly using
applications such as SmartLink, as well as other applications, which
records a person’s location and uses photos as “check-ins” to verify
compliance with house arrest or curfew.42 Over 50,000 people are
currently being monitored by SmartLink.43
(4) Electronic search conditions allow for continuous, suspicionless
searches of personal electronic devices and electronic data for
people on various forms of court supervision.44 These search
conditions, usually imposed by courts at sentencing, “allow law
enforcement to monitor supervisees’ e-mail, social media activity,
texting, location and cellphone usage, and all other information
contained on devices, twenty-four hours a day.”45

Mike Nellis, “Better Than Human”? Smartphones, Artificial Intelligence and UltraPunitive Electronic Monitoring 5–6 (2019) https://www.challengingecarceration.org/2019/
01/28/meet-mike-nellis-global-expert-on-electronic-monitoring
[https://perma.cc/2JLCZKF4]; Am. Prob. & Parole Ass’n Submitted by the Tech. Comm., Leveraging the Power of
Smartphone Applications to Enhance Community Supervision 3 (2020), https://www.appanet.org/eweb/docs/APPA/stances/ip-LPSAECS.pdf [https://perma.cc/QJN4-V4GZ]; see also
Todd Feathers, ‘They Track Every Move’: How US Parole Apps Created Digital Prisoners,
Guardian (Mar. 4, 2021), https://www.theguardian.com/global-development/2021/mar/
04/they-track-every-move-how-us-parole-apps-created-digital-prisoners
[https://perma.cc/7HEJ-NG56].
41
Kofman, supra note 27.
42
Transcript of Official Electronic Sound Recording of Proceedings at 9, 15, United States
v. [name redacted], (S.D. Cal. May 6, 2020); see also BI SmartLINK, Reliant Monitoring
Services, http://reliantmonitoring.com/work/bi-smartlink [https://perma.cc/SK44-37D8] (last
visited Oct. 28, 2020) (using voice verification options); Mobile Application, Shadowtrack,
https://www.shadowtrack.com/mobile-application [https://perma.cc/2RUU-5W8L] (last
visited Oct. 28, 2020) (using voice check-ins).
43
Transcript of Official Electronic Sound Recording of Proceedings at 6–7, United States
v. [name redacted], (S.D. Cal. May 6, 2020).
44
See, e.g., In re Ricardo P., 446 P.3d 747, 749 (Cal. 2019) (invalidating the condition that
a juvenile submit to warrantless searches); United States v. Lifshitz, 369 F.3d 173, 177 (2d
Cir. 2004) (imposing the limit of reasonable suspicion upon the ability of the probation officer
to make unannounced examinations); Weisburd, Sentenced to Surveillance, supra note 9, at
728.
45
Weisburd, Sentenced to Surveillance, supra note 9, at 728.

2022]

Punitive Surveillance

157

The operation of punitive surveillance fits within a broader context of
informational and digital privacy belonging primarily to the privileged.46
Punitive surveillance builds on decades of police surveillance as a mode
of control47 and is a manifestation of what Ruha Benjamin terms “the new
Jim Code,” which refers to “new technologies that reflect and reproduce
existing inequities but that are promoted and perceived as more objective
or progressive than the discriminatory systems of a previous era.”48
The infringement of constitutional rights that accompanies punitive
surveillance must be understood within this larger ecosystem of state
surveillance as a form of social and racial subordination.49 In his article,
From Decarceration to E-Carceration, Chaz Arnett addresses the ways in
which electronic monitoring is a form of social marginalization resulting
in the maintenance of social stratification.50 This development has
historical roots. From lantern laws, which required enslaved people to
carry a lantern if they were out past dark and not in the company of a
white person, to FBI surveillance of civil rights leaders,51 to
discriminatory stop-and-frisk practices, “racism and antiblackness
undergird and sustain the intersecting surveillances of our present
order.”52
Despite the proliferation of various forms of electronic surveillance,
the expansion is relatively invisible to those not directly impacted by the
criminal legal system.53 The imposition of conditions of probation and
46

See, e.g., Khiara M. Bridges, The Poverty of Privacy Rights 16, 89 (2017) (describing
how poor mothers do not “bear privacy rights”); I. Bennett Capers, Race, Policing, and
Technology, 95 N.C. L. Rev. 1241, 1285 (2017) (explaining that “privacy has never been
distributed equally”); Scott Skinner Thompson, Privacy at the Margins 16 (2021) (describing
how marginalized communities experience less privacy).
47
See Elizabeth E. Joh, Automated Policing, 15 Ohio St. J. Crim. L. 559, 563 (2018)
(explaining that “automated policing may exacerbate social inequalities in ways that have to
be addressed”).
48
Benjamin, supra note 13, at 5–6.
49
See Bridges, supra note 46, at 140–43; Benjamin, supra note 13, at 6.
50
Arnett, supra note 22, at 675.
51
Alvaro M. Bedoya, The Color of Surveillance, Slate (Jan. 18, 2016),
https://slate.com/technology/2016/01/what-the-fbis-surveillance-of-martin-luther-king-saysabout-modern-spying.html [https://perma.cc/3PF4-PHY6]; James Kilgore, Opinion, The First
Step Act Opens the Door to Digital Incarceration, Truthout (Dec. 18, 2018),
https://truthout.org/articles/the-first-step-act-opens-the-door-to-digital-incarceration
[https://perma.cc/397N-ZY4U].
52
Simone Browne, Dark Matters: On the Surveillance of Blackness 9 (2015).
53
There is limited transparency when it comes to criminal surveillance generally. See Ngozi
Okidegbe, The Democratizing Potential of Algorithms?, 55 Conn. L. Rev. (forthcoming)
(discussing how pretrial algorithmic governance obscures the racial disparities of the pretrial

158

Virginia Law Review

[Vol. 108:147

parole is already a low visibility practice,54 and the imposition of punitive
surveillance is all but invisible. Other than our study, there has been no
large-scale study of the policies and practices governing punitive
surveillance in the adult criminal legal system.55 Thanks to the efforts of
activists, community organizers, and intrepid reporters, there is now a
deeper understanding by the public of what it means to live under punitive
surveillance.56 Institutional and bureaucratic forces, however, shield from
view the specific mechanisms by which punitive surveillance operates.57
Likewise, people on monitors are rarely able to legally challenge—and
thereby expose—the use of punitive surveillance. Because punitive
surveillance is most often presented as an alternative to incarceration that,
in theory, a defendant agrees to, there is no obvious opportunity to object.
In the context of supervised release and diversion programs, “defendants
will accept nearly any arrangement as long as it provides them the
opportunity to avoid going to prison.”58 The specter of prison is so
coercive that there is little to “counteract the scope of the concessions that
judges and prosecutors have been able to demand from defendants . . . .”59
A person’s agreement to punitive surveillance means that there is little
interrogation, much less an external check, of the rights that defendants
system); Hannah Bloch-Webha, Visible Policing: Technology, Transparency, and Democratic
Control, 109 Calif. L. Rev. 917, 920–22 (2021); Andrew Ferguson, The Rise of Big Data
Policing 136 (2017).
54
See Joan Petersilia, Probation in the United States, 22 Crime & Just. 149, 153 (1997)
(explaining how “[p]robation receives little public scrutiny, not by intent but because the
probation system is so complex and the data are scattered among hundreds of loosely
connected agencies, each operating with a wide variety of rules and structures”); Fiona
Doherty, Obey All Laws and Be Good: Probation and the Meaning of Recidivism, 104 Geo.
L.J. 291, 294, 327 (2016) [hereinafter Doherty, Obey All Laws] (discussing how most
standards and obligations determining what it means to be on probation are not publicly
accessible and how probation officers’ discretion operates “in the shadows”).
55
The only other comparable studies focused on the terms and conditions of electronic
monitoring in juvenile court in California and the use of monitoring in immigration
proceedings. See Rena Coen et al., Electronic Monitoring of Youth in the California Juvenile
Justice
System:
Complete
Appendix
(2017),
https://berkeley.app.box.com/v/
completeappendix [https://perma.cc/4KSL-S6ZS]; Tosca Giustini et al., supra note 27. Both
reports very much inspired this project.
56
The Challenging E-Carceration Project collected and shared video and audio accounts of
what life is like on a monitor. See The Voices of the Monitored-Video and Audio Gallery,
Challenging
E-Carceration,
https://www.challengingecarceration.org/watch-videos
[https://perma.cc/9CFH-49BK] (last visited Dec. 4, 2020).
57
See infra Section I.C.
58
Fiona Doherty, Testing Periods and Outcome Determination in Criminal Cases, 103
Minn. L. Rev. 1699, 1704 (2019).
59
Id.

2022]

Punitive Surveillance

159

are forced to give up in exchange for avoiding prison.60 The lack of
transparency inspired this empirical research project.
B. Research Methodology
A team of research assistants and I attempted to collect the following
records from all fifty states:
(a) The terms and conditions with which people on electronic
monitors must comply;
(b) Internal agency policies governing the use of surveillance
technology, including electronic monitors;
(c) Standard conditions of community supervision; and
(d) Contracts between government agencies overseeing community
supervision and private vendors supplying the surveillance
hardware, software, and technology.
To obtain this information, we requested records from the individual
agencies that oversee pretrial release, probation, and parole at both the
local and state level.61 To date, we have collected 247 records from 101
separate agencies, and the project is ongoing.62 We received at least one
(and often more) records from forty-four states, including Washington,
D.C.63 Most of the records in this study were obtained through informal
requests or formal public record act requests. The records paint a vivid
picture of how punitive surveillance functions.64
C. Research Findings
By every measure, electronic surveillance of people on community
supervision reflects a new type of incarceration that exists outside of
traditional brick and mortar prisons. Our analysis of the agency records
demonstrates that the surveillance itself is a form of punishment clearly

In prior work, I address the problems with relying on consent to dispense with Fourth
Amendment protections. See Weisburd, Sentenced to Surveillance, supra note 9, at 736.
61
In some states, the same agencies oversee the various forms of community supervision,
while in other states, separate agencies oversee pretrial release, probation, and parole. See
Electronic Prisons, supra note 4, at 4.
62
See the Appendix for a breakdown of the types of records in our study as well as a list of
all the agencies that we received records from.
63
Id.
64
All records collected in our study and relied on in this paper are on file with the author
and will be publicly available on a website for use by advocates, researchers, journalists, and
others.

160

Virginia Law Review

[Vol. 108:147

meant to take the place of incarceration, even if it is not as harsh as
incarceration. What follows are some of the key characteristics of punitive
surveillance and the ways in which they implicate fundamental rights.
1. Invasive
a. Audio Functions
At least thirteen agencies use ankle monitors that allow for beeping
alerts or are equipped with audio features that facilitate two-way
conversations between people on the monitors and the agents monitoring
them.65 The audio features mean that anyone within earshot will be alerted
to the monitor.66 Because these devices are developed and marketed by
private companies, it is not entirely clear how the audio features function.
News accounts indicate that at least some monitors allow agents to listen
to defendants’ conversations without their consent.67
b. Location Data
None of the records in our study included written limits on the uses of
the location data (or for that matter, audio data) collected by the ankle
monitors. Many of the contracts between private companies and public
agencies provide that the private company track and maintain the location
data generated by monitors.68 In Denver, internal monitoring policies
provide that “[a]dult GPS records are open to the public, so anyone,
including the DA, can have them regardless of whether the case is open
or closed and regardless of the person’s reason for wanting the records.”69
Very few jurisdictions inform people on monitors that their location
data is saved and may be shared with law enforcement.70 For example,
agencies in Connecticut, Florida, Idaho, Iowa, Kansas, Michigan,
Oklahoma, Wisconsin, and Washington, D.C. inform people that all of
their movements will be tracked and stored as an “official record.”71
Those on monitors on pretrial release in Washington, D.C. must agree that
65

Id. at 9.
Id.
67
Lerner, supra note 39; Kaplan, supra note 39.
68
See Electronic Prisons, supra note 4, at 10.
69
Id.
70
See id.
71
See id. at 11, 40 n.85; see also D.C., Ct. Servs. & Offender Supervision Agency, Policy
Statement 4008, GPS Tracking of Offenders (2009).
66

2022]

Punitive Surveillance

161

the pretrial services agency can “provide my tracking information to law
enforcement for investigative purposes.”72 In Los Angeles, local law
enforcement may access the location data.73 The vast majority of records
did not inform people about what happens to their data, or how long it is
stored for.74
Many records were silent as to data sharing with police. That said,
some state statutes allow police, probation officers, and private
surveillance companies to share information with each other.75 For
example, in North Carolina, a defendant’s location information can be
used to “correlate their movements to reported crime incidents.”76 It is
likely that data-sharing with law enforcement is common, even if not
reflected in agency records.77
c. Search Conditions & Sharing Personal Information
Records from six agencies in five different states explicitly require
people on electronic monitors to submit to searches of their cell phones
and other electronic devices.78 Only one of those agencies, Sedgwick
County Department of Corrections in Kansas, specifies that officers need
at least reasonable suspicion before searching an electronic device.79
In most places, people on electronic monitors are also subject to the
general search conditions that apply to everyone on pretrial release,
probation, or parole. People on court supervision (including people who
are on monitors) are also often subjected to invasions of their bodily
autonomy through random drug tests, blood, and DNA samples, as well
as invasions of their homes through mandatory home visits which may

Id. at 10.
See id.
74
Id. at 11.
75
See N.C. Gen. Stat. § 14-208.40(c)(2)–(d) (2021); Mass. Gen. Laws ch. 276, § 90 (2018)
(allowing police to inspect probation records).
76
N.C. Gen. Stat. § 14-208.40(c)(2)–(d) (2017).
77
See, e.g., Catherine Crump & Amisha Gandhi, Electronic Monitoring of Youth in the
California Juvenile Justice System (2020), https://www.law.berkeley.edu/wpcontent/uploads/2020/11/Samuelson-Electronic-Monitoring-Youth-California-Addl-Data11_2020.pdf [https://perma.cc/773F-6TPG] (documenting that the majority of counties in
California share data collected through electronic monitors in juvenile court with law
enforcement).
78
Electronic Prisons, supra note 4, at 11.
79
Sedgwick Cnty., Kan., Div. of Corr., No. 2.969.1, Supervision Agreement–Pretrial
(2020).
73

162

Virginia Law Review

[Vol. 108:147

include warrantless searches of the entire home.80 In Ada County, Idaho,
people on pretrial release and probation are also required to share all of
their medical and treatment history records with the probation
department.81
d. User Fees
Of the records we received, agencies in twenty-three states require
defendants to pay some kind of electronic monitoring fee, often a weekly
or monthly payment in addition to an initial installation fee.82 Fees vary
widely, from $1.50 per day to $47 per day.83 If a person is on a monitor
for a year (which is common) they could pay as much as $2,800 to over
$5,000 per year.84 One-time user fees range from $25 to $300.85 The fee
collection is often left to the private companies. In twenty-three states, the
private monitoring companies oversee fee collection.86
Of the records we reviewed, the vast majority said nothing about fee
waivers or what might happen if someone did not pay. Agency records
from fourteen states provide for the ability to pay determinations, but the
process for obtaining a fee waiver or reduction was not straightforward.87
As other scholars have observed, ability to pay determinations are often
fraught and difficult to navigate.88
The fees for electronic monitoring are often in addition to other
probation or parole-related fees, court fees, fines, and victim restitution.89
80

See Electronic Prisons, supra note 4, at 11.
Id.
82
For a complete list, see Electronic Prisons, supra note 4, at 15.
83
Id.
84
Id. at 16.
85
Id. at 15.
86
Id. at 17.
87
Id.
88
Beth A. Colgan, Beyond Graduation: Economic Sanctions and Structural Reform, 69
Duke L.J. 1529, 1544–45 (2020) (describing how laws ignore or provide little guidance on
how to determine a person’s ability to pay); Theresa Zhen, (Color)blind Reform: How Abilityto-Pay Determinations Are Inadequate to Transform a Racialized System of Penal Debt, 43
N.Y.U. Rev. L. & Soc. Change 175, 187–88 (2019) (critiquing ability to pay schemes).
89
Matthew Menendez, Michael F. Crowley, Lauren-Brooke Eisen & Noah Atchison, The
Steep Costs of Criminal Justice Fees and Fines, Brennan Ctr. for Just. 6–7 (Nov. 21, 2019),
https://www.brennancenter.org/our-work/research-reports/steep-costs-criminal-justice-feesand-fines [https://perma.cc/55N9-MTNF]; Karin D. Martin, Sandra Susan Smith & Wendy
Still, Shackled to Debt: Criminal Justice Financial Obligations and the Barriers to Re-Entry
They Create, Nat’l Inst. Just. 8 (Jan. 2017), https://www.ojp.gov/pdffiles1/nij/249976.pdf
[https://perma.cc/ZG4L-R8RD]; Anna VanCleave et al., Money and Punishment, Circa 2020,
81

2022]

Punitive Surveillance

163

There are also less obvious costs. Many agencies also require people to
have reliable electricity and either a landline, cellphone, or both.90 These
fees add up, especially considering that some people are on monitors for
months, if not years.91
2. Restrictive
a. Numerous & Ambiguous Rules
People on monitors are subject to anywhere from six to fifty-eight
separate rules, as compared to only a dozen or so standard rules for people
on parole or probation without a monitor.92 These rules are usually
contained in a sort of “user agreement” or contract that people sign as part
of being placed on the monitor. The “agreement” generally contains the
terms and conditions and often stipulates that any violation of the contract
may result in revocation.93 It is not clear from the records how someone
signing the contract would have the opportunity to negotiate the terms.
For the most part, the terms and conditions appear binding and not subject
to modification.94
Both monitoring terms, as well as general conditions of release, often
contain vague and ambiguous rules.95 In the records collected in our
study, many contained rules requiring people to “abandon evil associates
and ways,” “maintain acceptable behavior,” conduct themselves in “an
orderly manner at all times” and “in the manner of a responsible citizen,”
among others.96
b. Movement Limitations
The terms and conditions of electronic monitoring are highly restrictive
of any unplanned movement outside the home. In most places, people on

at 62 (Arthur Liman Ctr. for Pub. Int. Law et al. eds., 2020),
https://law.yale.edu/sites/default/files/area/center/liman/document/
money_and_punishment_circa_2020.pdf [https://perma.cc/J2WW-UJM3].
90
Electronic Prisons, supra note 4, at 17.
91
Id. at 16.
92
See, e.g., id. at 18, 44 n.151.
93
For a complete list see id. at 7–14, 19–21.
94
See id. at 20–21.
95
Electronic Prisons, supra note 4, at 20; see also Fiona Doherty, Obey All Laws, supra note
54 (describing the vagueness of probation terms).
96
Electronic Prisons, supra note 4, at 20.

164

Virginia Law Review

[Vol. 108:147

monitors are subject to house arrest97 and cannot leave their house without
getting pre-approval. For example, people on monitors in Louisville,
Kentucky are “required to remain inside of [their] residence at all
times . . . . Inside means no decks, patios, porches, taking out the trash,
etc.”98And in Johnson County, Kansas people on monitors must obtain
prior approval from their House Arrest Officer in order to leave their
home for “employment, school, attorney visits, doctor appointments,
dentist appointments, counseling or treatment, . . . meetings with other
DOC personnel, church, and other emergency situations.”99 Likewise, in
Milwaukee, people on monitors must get authorization to go to the
grocery store (for one hour once a week), the laundromat (for two hours
once a week), to vote, and to attend church (for four hours once a
week).100
Of the records we received, the majority did not provide instructions
on how people could obtain permission to leave home. Those that do
provide some instruction require that permission be obtained at least
twenty-four to forty-eight hours in advance.101 Some jurisdictions also
require people on monitors to follow a specific travel route. For example,
in Lake County, Illinois people on monitors must “use the most direct
route possible” when traveling to an approved location and cannot make
“additional stops.”102
In some places, people on monitors must either stay outside or inside
designated “restricted areas” or “exclusion zones” and entering (or
leaving) one of these areas may be grounds for a violation.103
Finally, there are also limitations on people’s ability to drive and use a
car. For example, the Indiana Department of Corrections requires people
on supervision to obtain permission from their supervising officer before
applying for or renewing a driver’s license or buying a motor vehicle.104
And in Oklahoma, people on monitors are prohibited from operating a
motor vehicle without the supervising officer’s approval and are required

Id. at 6.
Id. at 7.
99
Id.
100
Milwaukee Cnty., Wis., Justice Point, Supervision—GPS Policies & Procedures Manual
(2016).
101
Electronic Prisons, supra note 4, at 7.
102
Id.
103
Id.
104
Id. at 8.
98

2022]

Punitive Surveillance

165

to submit proof of ownership, verification of insurance, and a valid
driver’s license in order to obtain approval.105
c. Charging Requirements
The rules are also very specific about how and when to charge the ankle
monitors. In most places, people on monitors must charge their devices at
regular times every day and for a predetermined and significant number
of hours.106 Many agencies require people to charge their devices
anywhere from two to four hours at a time every day.107 Records from
Florida and Virginia require that people charge their monitors for four
hours a day.108 And agency records from Indiana, California, Connecticut,
Kansas, Ohio, Virginia, and Wisconsin forbid people from charging their
monitoring device while sleeping.109 In Washington, D.C., the failure to
keep an ankle monitor charged is a crime.110 None of the records
addressed potential challenges to regularly charging a device, such as
unpredictable work schedules, unreliable access to electricity, and
housing insecurity.111
d. Constraints on Personal & Family Life
Many of the electronic monitoring policies contain additional
restrictions on people’s personal and professional lives. For example,
monitoring rules in Johnson County, Kansas require that “prior to
entering into a marriage, financial or other contract, [the participant] will
discuss the matter” with their supervising agent.112 Likewise, records
from Mississippi provide that people on monitors “will marry only after

105

Id.
Id.
107
Id. at 8–9.
108
Id. at 8; Va., Dep’t of Corr., GPS Monitoring Rules (2017).
109
Electronic Prisons, supra note 4, at 8–9; S.F., Cal., LCA Electronic Monitoring Programs,
Electronic Monitoring Program Policies—Pretrial 7 (on file with author); Conn., Adult
Services Electronic Monitoring, GPS Program Participant Acknowledgment Form—Pretrial
(2018); Milwaukee Cnty., Wis., Justice Point, EM Program Participant Agreement (on file
with author); Off. of the Sheriff of Fairfax Cnty., Home Incarceration Program Rules and
Regulations (2019).
110
D.C. Code § 22-1211(a)(1)(C) (2017).
111
Electronic Prisons, supra note 4, at 8–9.
112
Id. at 13.
106

166

Virginia Law Review

[Vol. 108:147

approval by” the Department of Corrections and must provide
documentation for doctor visits, phone bills, and church attendance.113
The person on the monitor is not the only one impacted. Electronic
monitoring conditions often impose significant burdens on friends and
family. Some agencies forbid people on monitors from having house
guests, gatherings, or allowing anyone to move into the house without
permission.114 Search conditions also impact everyone in the home, as
agents are permitted to search the entire home of the person on the
monitor.115 In Virginia, people who live with someone on a monitor must
provide basic contact information as well as their criminal history, highest
education level, and substance abuse history.116
In Alaska, people on monitors are prohibited from “babysitting or
being a primary caregiver for any person, children, or pets without
approval.”117 And in San Diego, everyone who lives with a person on a
monitor must sign a “Cohabitation Acknowledgment Form” that contains
additional rules.118 In some places, like Oakland County, Michigan, the
rules require “a responsible party of the community” to take on the role
of police by taking “custody” of the person and “agree[ing] to monitor the
defendant and report any violation of any release conditions to the
court.”119
People on monitors are also restricted with respect to social and
familial relationships. Rules in Dane County, Wisconsin expressly
prohibit leaving the home for any social, religious, or family function.120
The majority of policies we reviewed generally restricted (if not forbade)
social gatherings for people on monitors.121
There are also restrictions on who people on monitors may interact
with. In Mississippi, people are prohibited from associating with anyone
that has a “bad reputation.”122 In Kanawha County, West Virginia, people
on monitors must not allow people of “disreputable character” to visit
113
Miss., Dep’t of Corr., Electronic Monitoring of Offenders ISP Enrollment & Conditions
(2015).
114
For a complete list see Electronic Prisons, supra note 4, at 41 n.95–96, 46.
115
Id. at 12.
116
Id. at 13.
117
Id. at 12.
118
Id.
119
Id. at 13.
120
Dane Cnty., Wis., Sheriff’s Office, Jail Diversion Rules and Regulations (2020).
121
For a complete list see Electronic Prisons, supra note 4, at 12 (describing the different
types of social and family restrictions).
122
Id. at 14.

2022]

Punitive Surveillance

167

their home.123 And in New Mexico, rules forbid people on monitors from
interacting with people the parole or probation officer deems “detrimental
to [their] Probation supervision.”124 In a few places, people on monitors
may not communicate with people who have a criminal record, or of
“disreputable character.”125
Lastly, there are also restrictions on housing and where people may
live. Several agencies require that people on court supervision (which
includes people on monitors) only live in “approved” housing and in a
few places, people on monitors face additional restrictions related to
temporary housing, subsidized government housing, or hotels.126
e. Employment Restrictions
Most of the policies we reviewed contained strict rules about
employment.127 In many jurisdictions, people on monitors must obtain
approval before changing jobs or work schedules, and in some places,
they are required to report their earnings.128 Likewise, people on monitors
in Prince George’s County, Maryland must submit weekly work
schedules, and any changes to the schedule, as well as all overtime must
be verified by a supervisor.129 In St. Louis County, people on monitors
also must agree to be “financially responsible,” which includes
maintaining insurance for their car, paying child support, and remaining
current on all household bills.130 Although the visibility of monitors often
makes it hard for people to get or maintain a job,131 in Washington, D.C.
internal agency policies state that defendants should be “placed on a GPS
monitor as an incentive to find employment.”132

123

Id.
Id.
125
Id.
126
Electronic Prisons, supra note 4, at 17.
127
Id. at 14.
128
Id.
129
Prince George’s Cnty., Md., Home Detention Program—Conditions of Release (on file
with author).
130
St. Louis Cnty., Mo., Dep’t of Just. Servs., Electronic Home Detention
Contract/Agreement (on file with author).
131
See Aaron Cantú, When Innocent Until Proven Guilty Costs $400 a Month–and Your
Freedom, VICE (May 28, 2020), https://www.vice.com/en/article/4ayv4d/when-innocentuntil-proven-guilty-costs-dollar400-a-monthand-your-freedom
[https://perma.cc/4SVAEWMF].
132
D.C., Ct. Servs. & Offender Supervision Agency, supra note 71.
124

168

Virginia Law Review

[Vol. 108:147

Monitoring rules also impose requirements on employers. Five
jurisdictions, for example, explicitly require the person on the monitor to
inform their employer that they are on supervision.133 Several agencies
permit supervising agents to conduct random checks at places of
employment.134 In Idaho, people on monitors at work must remain in
areas of their workplace that receive sufficient GPS signals,135 and in
Arizona, they must bring their charger to their job so that the ankle device
remains fully charged.136
3. Third-Party Power and Invisibility
Our research also revealed the role, and power, of third parties, such as
government agencies and private companies that market and operate
various forms of electronic surveillance. Because punitive surveillance is
generally controlled by these third parties, there is a general lack of
transparency.
a. Public-Private Partnerships
As a threshold matter, the implementation of punitive surveillance is
left to the several thousand pretrial, probation, and parole agencies
throughout the United States.137 These agencies vary widely by state,
county, and jurisdiction, including which branch of government they sit
within.138 The majority of agencies contract with for-profit companies
that sell the hardware, software, and, depending on the contract, staffing
and data collection.139 In the records we reviewed, four main companies
held the majority of the contracts: BI Incorporated, Attenti (formerly 3M),
Satellite Tracking of People LLC, and Sentinel Offender Services LLC.140
The contracts often last for several years and involve millions of
dollars.141
133

Electronic Prisons, supra note 4, at 14.
Id.
135
Id.
136
Id.
137
See Petersilia, supra note 54.
138
Michael P. Jacobson, Vincent Schiraldi, Reagan Daly & Emily Hotez, Less Is More:
How Reducing Probation Populations Can Improve Outcomes 2–3 (2017),
https://www.hks.harvard.edu/sites/default/files/centers/wiener/programs/pcj/files/less_
is_more_final.pdf [https://perma.cc/GPL5-QTSV].
139
See Electronic Prisons, supra note 4, at 17, 21–23.
140
Id. at 22.
141
Id.
134

2022]

Punitive Surveillance

169

Although the relationship between government agencies and private
vendors varies tremendously, often within the same jurisdiction, the result
appears the same: private industry holds power.142 Contracts from twentytwo states stipulate that private companies help track the movements of
people on electronic monitoring devices by collecting and maintaining a
database of location data and other personal data.143 The private
companies then share the data with the state and local agencies that
oversee electronic monitoring.144
In some jurisdictions, private monitoring companies, or bail bond
companies, contract directly with people detained in jail pretrial and
condition their services on people agreeing to, and paying for, electronic
monitoring.145 These arrangements cut out government agencies and
make it almost impossible to determine the precise ways in which
monitoring operates.
Private vendors are increasingly taking on responsibilities that are
normally considered governmental functions, ranging from making
scheduling changes for people on electronic monitors to providing
warrant processing services and communicating with people whose
movements or actions trigger monitoring system violation alerts.146
b. Identification of Violations
Both government agencies and private companies wield immense
power in terms of rule violations. The records we reviewed often
142

Carl Takei, From Mass Incarceration to Mass Control, and Back Again: How Bipartisan
Criminal Justice Reform May Lead to a For-Profit Nightmare, 20 U. Pa. J.L. & Soc. Change
125, 154–55 (2017); Malcolm M. Feeley, Private Alternatives to Criminal Courts: The Future
Is All Around Us, 119 Colum. L. Rev. 38, 64–66 (2019).
143
See Electronic Prisons, supra note 4, at 21.
144
Id. at 10.
145
See Edwards v. Leaders in Cmty. Alts., Inc., No. C 18-04609, 2018 WL 6591449, at *1
(N.D. Cal. Dec. 14, 2018). In our attempt to collect records, we learned of several jurisdictions,
including St. Louis County and Milwaukee County, where private companies contract directly
with people in jails and prisons. See Document Request Log with St. Louis Cnty., Mo., Dep’t
of Just. Servs.—Pretrial Supervision (2020) (on file with author); Email from Edward Gordon,
Co-Founder/Chief Operating Officer, JusticePoint, to Sarah Wohlsdorf, Research Assistant to
Professor Kate Weisburd, Geo. Wash. Univ. (Mar. 10, 2020, 10:30 AM) (on file with author);
Municipal Court Alternatives Program, JusticePoint, https://www.justicepoint.org/
wisconsin#city-of-milwaukee [https://perma.cc/HH6H-86NA]; see also GPS Monitoring
Services, Mr. Nice Guy Bail Bonds, https://www.mrniceguybailbonds.com/our-services/gpsmonitoring [https://perma.cc/25WH-B4BU] (last visited Jan. 23, 2022) (offering GPS as
collateral for posting bail).
146
See Electronic Prisons, supra note 4, at 21–22.

170

Virginia Law Review

[Vol. 108:147

contained little insight into what constitutes a violation. Of the policies
we reviewed, the majority did not provide any information about which
type of rule violation might result in reincarceration.147 A small fraction
of the records explained how someone on a monitor could challenge or
contest a monitoring violation.148 Likewise, very few of the records
provided information on how to address equipment malfunctions.149
The records also reflected the large role that private monitoring
companies play in identifying and processing violations of the monitoring
rules. Many private companies are responsible for identifying violations
and bringing them to the attention of the government agencies.150 And
contracts from four states specify that the private company is responsible
for notifying the court of violations.151
c. Program Evaluation
None of the policies contained provisions about evaluating the
effectiveness of monitoring. There were no provisions about collecting
data to measure, for example, if increased surveillance led to fewer missed
court dates, fewer violations, or fewer arrests for new offenses. None of
the policies provide for any type of study, or even data collection, to
determine the effectiveness of surveillance, much less who is subject to
surveillance. Studies and data collection may be happening, but they are
not reflected in documents that we reviewed.
The role of private industry helps explain why so little is known about
punitive surveillance.152 Private companies, unrestrained by public record
act requirements or government oversight, are proprietary about their
surveillance products, including what happens to the private data that they
collect.153 Like other automated systems, the functioning of punitive

147

Id. at 20–21.
Id. at 21.
149
Id. at 27.
150
See Electronic Prisons, supra note 4, at 21.
151
Id. at 21.
152
For a comprehensive accounting of the role of private industry in policing and
surveillance, see Elizabeth E. Joh, Policing by Numbers: Big Data and the Fourth Amendment,
89 Wash. L. Rev. 35, 66 (2014); Elizabeth E. Joh, The Undue Influence of Surveillance
Technology Companies on Policing, 92 N.Y.U. L. Rev. Online 19, 30–33 (2017),
https://www.nyulawreview.org/wp-content/uploads/2017/08/NYULawReviewOnline-92Joh_0.pdf [https://perma.cc/T7CV-3JE6].
153
See Jan Whittington & Chris Jay Hoofnagle, Unpacking Privacy’s Price, 90 N.C. L. Rev.
1327, 1357 (2012).
148

2022]

Punitive Surveillance

171

surveillance is opaque and “shields [it] from scrutiny.”154 Defendants and
their advocates are often in the dark as to issues such as error rates, false
alerts, the loss of a signal, or defects in the technology.155
Even agencies that are subject to public record laws made it difficult to
access basic records related to punitive surveillance, further obscuring
how surveillance operates. For the most part, the records obtained in our
study are not available online. It has taken almost two years and a team
of intrepid research assistants to track down these records. Some agencies
refused to share the records, while others charged a fee. Even agencies
that ultimately complied with our records requests often required months
of follow-up.
D. Research Limitations
To be sure, there are limitations to this research. First, practices in
pretrial release, probation, and parole vary tremendously. For example, in
some places, probation operates at the county level, and in other places,
it operates at the state level. For states with probation overseen at the
county level, we collected records from the two most populous counties
in the state. Relatedly, different jurisdictions and agencies use different
terminology with respect to the type of court supervision and electronic
surveillance more generally. Even the term “electronic monitoring” has
different meanings depending on the agency. These differences
complicated the comparisons across agencies and jurisdictions.
Second, while we attempted to collect records from every state and
succeeded in getting at least one record from most states, there was great
variation in our ability to get all the records we sought from all
jurisdictions. As a result, some jurisdictions are overrepresented in the
study and this study does not purport to perfectly reflect monitoring
practices in the United States.
Third, written policies do not paint a complete picture. Missing from
the records are the voices and experiences of those directly impacted—
namely, the people who are subject to punitive surveillance, as well as
their families and friends. Much should be learned from those who are the
most impacted. Community organizations and grassroots organizers, like
154
Danielle Keats Citron, Technological Due Process, 85 Wash. U. L. Rev. 1249, 1254
(2008).
155
See Rebecca Wexler, Privacy Asymmetries: Access to Data in the Criminal Justice
System, 68 UCLA L. Rev. 212, 246 (2021).

172

Virginia Law Review

[Vol. 108:147

MediaJustice, community bail funds, Critical Resistance, and
Challenging E-Carceration, are exposing the punitive nature of electronic
surveillance.156 Also not captured in our study are the perspectives of key
institutional actors, such as defense lawyers, prosecutors, judges, and
probation and parole officers. Records do not and cannot capture the way
that individual agents deviate from the written policies.
Fourth, rapid changes to prison and jail release practices are underway
across the country. Local jurisdictions, either on their own or in response
to litigation or efforts of grassroots organizers, have reformed their bail
systems.157 Recent bail reforms in St. Louis, San Francisco, New York,
New Jersey, and Ohio resulted in an expansion in the use of electronic
monitoring.158 At the same time, the COVID-19 pandemic accelerated
changes with respect to policies governing the release of people in prisons
and jails.159 These suggest that the precise use of electronic surveillance
is in flux.160

156
See, e.g., Myaisha Hayes, #NoMoreShackles: Why Electronic Monitoring Devices Are
Another
Form
of
Prison,
Colorlines
(Dec.
5,
2018),
https://www.colorlines.com/articles/nomoreshackles-why-electronic-monitoring-devicesare-another-form-prison-op-ed [https://perma.cc/UCP9-46GC]; Chicago Community Bond
Fund, Punishment Is Not a “Service”: The Injustice of Pretrial Conditions in Cook County 7–
8
(2017),
https://chicagobond.org/wp-content/uploads/2018/10/pretrialreport.pdf
[https://perma.cc/8AYD-QZY7]; No New SF Jail Coalition, https://nonewsfjail.org/about/
[https://perma.cc/623L-5H24] (last visited Feb. 1, 2021); Media Justice, Challenging ECarceration, https://www.challengingecarceration.org [https://perma.cc/RH9A-7KVX] (last
visited Jan. 20, 2021).
157
Carroll, supra note 24, at 158, 192; Nat’l Conf. of State Legislatures, Trends in Pretrial
Release: State Legislation Update (2018) (noting that in 2017, forty-six states, including the
District of Columbia, enacted new laws related to pretrial procedures and pretrial release).
158
See Joshua Sabatini, Number of Inmates Released on Electronic Monitoring Triples
Following Bail Ruling, S.F. Examiner (Mar. 20, 2019), https://www.sfexaminer.com/thecity/number-of-inmates-released-on-electronic-monitoring-triples-following-bail-ruling
[https://perma.cc/AFH5-FUUF]; Carolina Hidalgo, As St. Louis Tries to Reform Bail System,
Advocates Warn About Increase in Ankle Monitoring, St. Louis Pub. Radio (June 27, 2019),
https://news.stlpublicradio.org/government-politics-issues/2019-06-27/as-st-louis-tries-toreform-bail-system-advocates-warn-about-increase-in-ankle-monitoring
[https://perma.cc/JK7B-EZL5]; Lauren Kelleher, Out on Bail: What New York Can Learn
from D.C. About Solving a Money Bail Problem, 53 Am. Crim. L. Rev. 799, 814 (2016);
Glenn G. Grant, 2017 Report to the Governor and the Legislature, N.J. Courts 2, 25–26 (2017).
159
See, e.g., David Helps, Covid-19 Outbreaks at Jails and Prisons Should Make Us Rethink
Incarceration, Wash. Post (June 25, 2020), https://www.washingtonpost.com/outlook/
2020/06/25/covid-19-outbreaks-jails-prisons-should-make-us-rethink-incarceration
[https://perma.cc/Q7MY-CJEA].
160
Hager, supra note 5.

2022]

Punitive Surveillance

173

II. THE CARCERAL NATURE OF PUNITIVE SURVEILLANCE
Punitive surveillance, like prison, curtails free speech and association,
as well as freedom of movement. And the restrictions described in the
prior section would be clearly unconstitutional if applied to people not on
pretrial release, probation, or parole. Before addressing the
constitutionality of punitive surveillance, however, it is important to mark
how this surveillance technology facilitates a type of incarceration that
occurs outside of prison, further demonstrating that prison is no longer
the “state’s only means of restricting liberty.”161 The similarities between
physical and digital incarceration have led some scholars to refer to
punitive surveillance as a form of “e-carceration.”162
Courts, however, generally take a narrower view of incarceration.163
Rejecting a challenge to a Sex Offender Registration statute, for example,
the Supreme Court concluded that the statute “imposes no physical
restraint, and so does not resemble the punishment of imprisonment,
which is the paradigmatic affirmative disability or restraint.”164 As
discussed further in Part III of this paper, carceral surveillance and control
is often not viewed as punishment precisely because it does not involve
prison. For example, when the D.C. Court of Appeals evaluated the
retroactive application of a DNA collection statute, the court concluded
that the “DNA Act ‘imposes no physical restraint, and so does not
resemble the punishment of imprisonment.’”165
Although legal discourse views incarceration as requiring brick-andmortar buildings, activists and scholars have long urged a broader
definition of incarceration to include other forms of carceral control.166
161

Murphy, supra note 12.
See James Kilgore, Let’s Fight for Freedom From Electronic Monitors and ECarceration, Truthout (Sept. 4, 2019), https://truthout.org/articles/lets-fight-for-freedomfrom-electronic-monitors-and-e-carceration [https://perma.cc/N673-7CCN]; see also Arnett,
supra note 22.
163
See infra Part III.
164
Smith v. Doe, 538 U.S. 84, 99–100 (2003); see also Hudson v. United States, 522 U.S.
93, 104 (1997) (concluding that prohibition from working in a bank is “certainly nothing
approaching the ‘infamous punishment’ of imprisonment” (quoting Flemming v. Nestor, 363
U.S. 603, 617 (1960))).
165
Johnson v. Quander, 440 F.3d 489, 502 (D.C. Cir. 2006) (quoting Smith, 538 U.S. at
100).
166
See, e.g., Dorothy E. Roberts, Foreword: Abolition Constitutionalism, 133 Harv. L. Rev.
1, 17 (2019); Loïc Wacquant, Punishing the Poor 108–09 (2009); Monique W. Morris,
Pushout: The Criminalization of Black Girls in Schools 135–69 (2016); Dylan Rodríguez,
Abolition as Praxis of Human Being: A Foreword, 132 Harv. L. Rev. 1575, 1611 (2019).
162

174

Virginia Law Review

[Vol. 108:147

As Professor Dylan Rodríguez, a founder of Critical Resistance, explains,
“incarceration as a logic and method of dominance is not reducible to the
particular institutional form of jails, prisons, detention centers, and other
such brick-and-mortar incarcerating facilities.”167 Rather, “carceral
logic[]” is embedded in the design and operation of the modern welfare
state, public schools, hospitals, and criminal court risk-assessments, to
name just a few.168
This Part adds to this critique by exposing the specific ways that
punitive surveillance operates to further carceral logic. In particular, this
Part catalogs how punitive surveillance erodes constitutional rights in
ways that are consistent with incarceration, even if to a lesser degree. And
while each restriction “may appear de minimis,”169 taken together they
present an expansive constellation of constitutional harms. While there
are many ways that punitive surveillance runs afoul of fundamental
constitutional rights, this Article attempts to identify the most obvious
ones.
A. Privacy Restrictions
Although people on various forms of supervised release have limited
privacy interests, the “permissible degree” of state “impingement upon
[the] privacy” of individuals under supervision is “not unlimited.”170 The
findings from our study reveal, however, that the addition of electronic
surveillance to routine supervised release is a significant privacy
intrusion. We need to look no further than reactions to the mining of
cellphone location data to appreciate the privacy concerns related to
surveillance technology. For example, reporters commenting on location
data tracking posited that within “America’s own representative
167
Dylan Rodríguez, Abolition as Praxis of Human Being: A Foreword, 132 Harv. L. Rev.
1575, 1587 (2019).
168
Dorothy E. Roberts, Foreword: Abolition Constitutionalism, 133 Harv. L. Rev. 1, 18
(2019); Dorothy E. Roberts, Prison, Foster Care, and the Systemic Punishment of Black
Mothers, 59 UCLA L. Rev. 1474, 1478–79, 1490–91 (2012); Ji Seon Song, Policing the
Emergency Room, 134 Harv. L. Rev. 2646, 2649 (2021); Jyoti Nanda, The Construction and
Criminalization of Disability in School Incarceration, 9 Colum. J. Race & L. 265, 292 (2019);
Fanna Gamal, The Miseducation of Carceral Reform, 69 UCLA L. Rev. (forthcoming 2022)
(manuscript at 3–4) (on file with author); Kaaryn Gustafson, The Criminalization of Poverty,
99 J. Crim. L. & Criminology 643, 644–45 (2009); Bridges, supra note 46, at 94; Ngozi
Okidegbe, Discredited Data, 107 Cornell L. Rev. (forthcoming 2022) (manuscript at 4, 7) (on
file with author).
169
Murphy, supra note 12, at 1377.
170
Griffin v. Wisconsin, 483 U.S. 868, 875 (1987).

2022]

Punitive Surveillance

175

democracy, citizens would surely rise up in outrage if the government
attempted to mandate that every person above the age of 12 carry a
tracking device that revealed their location 24 hours a day.”171 Yet this is
precisely the experience of people subject to punitive surveillance.
If we take at face value that, as the Supreme Court observed, cell phone
data, including location data, “hold[s] for many Americans the ‘privacies
of life,’”172 then it follows that punitive surveillance violates basic notions
of privacy. Punitive surveillance allows prosecutors and law enforcement,
with the click of a mouse, access to immense amounts of personal,
otherwise private, information at any time of day and without notice to
the defendant. Electronic surveillance is a “sweeping form of
investigatory power” that “extends beyond a search, for it records
behavior, social interaction, and everything that a person says and
does.”173
In striking down warrantless electronic searches imposed as a condition
of juvenile probation, the California Supreme Court explained the extent
of the privacy intrusion implicated by punitive surveillance:
[The search condition] allows probation officers to remotely access
Ricardo’s e-mail, text and voicemail messages, photos, and online
accounts, including social media like Facebook and Twitter, at any
time. It would potentially even allow officers to monitor Ricardo’s text,
phone, or video communications in real time. Further, the condition
lacks any temporal limitations, permitting officers to access digital
information that long predated the imposition of Ricardo’s probation.174

The privacy intrusion is not limited to data. The degree of surveillance
imposed means that the “home is opened up as never before.”175 For
people returning from prison, the privacy of the home should allow people

171

Stuart A. Thompson & Charlie Warzel, Twelve Million Phones, One Dataset, Zero
Privacy, N.Y. Times (Dec. 19, 2019), https://www.nytimes.com/interactive/2019/12/19/
opinion/location-tracking-cell-phone.html [https://perma.cc/9QSV-43JM].
172
Riley v. California, 573 U.S. 373, 403 (2014).
173
Daniel J. Solove, Reconstructing Electronic Surveillance Law, 72 Geo. Wash. L. Rev.
1264, 1269 (2004).
174
In re Ricardo P., 446 P.3d 747, 757 (Cal. 2019).
175
R. Corbett & Gary T. Marx, Critique: No Soul in the New Machine: Technofallacies in
the Electronic Monitoring Movement, 8 Just. Q. 399, 401 (1991).

176

Virginia Law Review

[Vol. 108:147

to rebuild their lives, but instead that space is subjected to surveillance
where everyone is watched, and their movements are scrutinized.176
Fourth Amendment jurisprudence offers the most developed
framework for evaluating the privacy intrusion experienced by people
subject to punitive surveillance.177 The oft-divided Supreme Court has
taken a uniform and hard line on location data. In United States v. Jones,
Riley v. California, and Carpenter v. United States the Court focused on
the ways that location data “provides an all-encompassing record of the
holder’s whereabouts . . . and provides an intimate window into a
person’s life, revealing not only his particular movements, but through
them his ‘familial, political, professional, religious, and sexual
associations.”’178 As Chief Justice Roberts explained in Carpenter, police
use of historical cell site location information to “secretly monitor and
catalogue every single movement”179 of someone across time violates
social expectations about what law enforcement can and should be able
to do.180 In this way, “Carpenter signals a new kind of expectation of
privacy test, one that focuses on how much the government can learn
about a person regardless of the place or thing from which the information
came.”181
And yet, the holdings in Jones, Riley, and Carpenter are rarely
extended to people subject to punitive surveillance.182 To date, only a

176

James Kilgore, Interview with Simone Browne, A History of Tracking Black Bodies,
Policing
Boundaries,
Medium:
#NoDigitalPrisons
(June
20,
2018),
https://medium.com/nodigitalprisons/a-history-of-tracking-black-bodies-policingboundaries-862cefb3c0c9 [https://perma.cc/GY22-YT85].
177
See Weisburd, Sentenced to Surveillance, supra note 9, at 725.
178
Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018) (quoting United States v. Jones,
565 U.S. 400, 415 (2012) (Sotomayor, J., concurring)).
179
Id.
180
See Claire Garvie & Laura Moy, America Under Watch: Face Surveillance in the United
States, Geo. L. Ctr. on Priv. & Tech. (May 16, 2019).
181
Orin Kerr, Implementing Carpenter, The Digital Fourth Amendment 6 (Dec. 19, 2018)
(unpublished manuscript), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3301257
[https://perma.cc/B3CH-9299].
182
United States v. Lambus, 897 F.3d 368, 412 (2d Cir. 2018); United States v. Pacheco,
884 F.3d 1031, 1043 (10th Cir. 2018), cert. denied, 139 S. Ct. 278 (2018); United States v.
Johnson, 875 F.3d 1265, 1275 (9th Cir. 2017); Belleau v. Wall, 811 F.3d 929, 935 (7th Cir.
2016); United States v. Bare, 806 F.3d 1011, 1018 n.4 (9th Cir. 2015); Jackson v. United
States, 214 A.3d 464, 478 (D.C. 2019); Commonwealth v. Johnson, 119 N.E.3d 669, 680
(Mass. 2019); State v. Kane, 169 A.3d 762, 774 (Vt. 2017). But see United States v. Lara, 815
F.3d 605, 612 (9th Cir. 2016) (invalidating suspicionless search of probationer’s cell phone as
unreasonable where the suspected probation violation was missing a probation appointment);

2022]

Punitive Surveillance

177

small number of courts have found electronic monitoring and other forms
of punitive surveillance to be an unreasonable search.183 In prior work, I
explored this line of cases and urged a more robust application of the
Fourth Amendment to punitive surveillance.184
The Fourth Amendment implications of punitive surveillance are
perhaps the most obvious, but the right to privacy—and certainly privacy
harm—exists outside the Fourth Amendment.185 Even though “[t]he
Constitution does not explicitly mention any right of privacy,” the
Supreme Court has recognized that “a right of personal privacy, or a
guarantee of certain areas or zones of privacy” is one aspect of the
“liberty” protected by the Due Process Clause of the Fourteenth
Amendment.186 But this liberty-based right to privacy has yet to be
recognized as applying to people on court supervision.
The privacy restrictions associated with monitoring, while not as
invasive as prison, reflect a similar kind of deprivation, even if not to the
same degree. People in prison, like those on ankle monitors, have limited
privacy: their location is tracked and their communication read. Though
as discussed in Part III, the diminishment of privacy for people in prison
is justified not on punitive grounds, but because allowing too much
privacy would undermine prison security.187
B. Speech Restrictions
There are two general ways that punitive surveillance erodes First
Amendment rights. First, the surveillance of people’s location as well as
their communication inevitably regulates, chills, and restricts speech. In
Riley v. California, Chief Justice Roberts did not mince words in
describing the privacy interests in cellphones: “American adults who own
a cell phone keep on their person a digital record of nearly every aspect
Ricardo P., 446 P.3d at 754 (invoking Riley as part of the basis to strike down an electronic
search condition).
183
Commonwealth v. Norman, 142 N.E.3d 1, 10 (Mass. 2020); Commonwealth v. Feliz,
119 N.E.3d 700, 717 (Mass. 2019); State v. Grady, 831 S.E.2d 542, 571 (N.C. 2019); State v.
Gordon, 820 S.E.2d 339, 347 (N.C. Ct. App. 2018).
184
See Weisburd, Sentenced to Surveillance, supra note 9.
185
See Danielle Keats Citron & Daniel J. Solove, Privacy Harms, 102 B.U. L. Rev.
(forthcoming
2022)
(manuscript
at
33–64),
https://scholarship.law.gwu.edu/faculty_publications/1534/ [https://perma.cc/YV72-X7SK]
(providing typography of the types of privacy harms).
186
Roe v. Wade, 410 U.S. 113, 152 (1973).
187
See infra Section III.A.

178

Virginia Law Review

[Vol. 108:147

of their lives—from the mundane to the intimate.”188 GPS ankle monitors
raise parallel concerns. As Justice Sotomayor pointed out in her
concurrence in United States v. Jones, “GPS monitoring generates a
precise, comprehensive record of a person’s public movements that
reflects a wealth of detail about her familial, political, professional,
religious, and sexual associations.”189
Second, the terms and conditions governing punitive surveillance also
limit the ability to speak freely and assemble. Not only is speech
monitored but most monitoring rules also prohibit people on ankle
monitors from being near certain people (like other people convicted of
crimes) and places or attending events (like protests) without prior
approval. For people subject to punitive surveillance, attending a political
rally without prior approval would be a violation of the monitoring rules.
The negative effects of chilling speech risk stunting self-actualization,
as “privacy is closely connected with the emergence of a modern sense of
self.”190 Those being watched cannot meaningfully participate in the “vast
democratic forums of the internet,”191 or really any form of democracy.192
In this way, “[t]echnology alters—rather than just mechanizes—the
relationship between the individual and the state.”193 The restrictions on
attending political or social gatherings is similar in kind to the restrictions
placed on people in prison—who by virtue of their physical incarceration
cannot attend.
The disenfranchising effect of surveillance is hardly a coincidence or
unintended consequence but rather a reflection of surveillance as a tool of
racial subjugation.194 As Khiara M. Bridges observes in the context of the
surveillance of poor mothers of color, a zone of privacy is essential for
188

573 U.S. 373, 395 (2014).
565 U.S. 400, 415 (2012).
190
Peter Galison & Martha Minow, Our Privacy, Ourselves in the Age of Technological
Intrusions, in Human Rights in the ‘War on Terror’ 258–94, 258 (Richard Ashby Wilson ed.,
2005); see also Christopher Slobogin, Public Privacy: Camera Surveillance of Public Places
and the Right to Anonymity, 72 Miss. L.J. 213, 217 (2002) (arguing that continuous
government surveillance violates individuals’ “right to anonymity”).
191
Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017) (quoting Reno v. American
Civil Liberties Union, 521 U.S. 844, 868 (1997)).
192
Amy Lerman & Vesla M. Weaver, Arresting Citizenship: The Democratic Consequences
of American Crime Control 6 (2014).
193
Murphy, supra note 12, at 1366.
194
See Benjamin, supra note 13, at 5–6 (noting that the use of zip codes and racially coded
names in the development of the California gang database led to the inclusion of many babies
under the age of one); Browne, supra note 52, at 10 (“Surveillance is nothing new to black
folks. It is the fact of antiblackness.”).
189

2022]

Punitive Surveillance

179

purposes of dignity, autonomy, and capacity for self-governance.195
Punitive surveillance eliminates that zone of privacy.196
Even though people within the criminal legal system maintain some
limited First Amendment rights,197 surveillance is generally not viewed
as a First Amendment problem. More often, questions about surveillance
are framed as Fourth Amendment problems, and courts focus on whether
the surveillance is a reasonable search. Yet, perhaps there is an
independent First Amendment basis to regulate the ways that
surveillance, including punitive surveillance, implicates free speech.198
C. Liberty Restrictions
Punitive surveillance also limits liberty interests in ways that would
otherwise be considered unconstitutional for people outside of the
criminal legal system. In reference to location data tracking, one reporter
hypothesized that “Americans would never consent to a government
directive that all citizens carry a device that broadcast, in real time, their
physical location and archived that information in repositories that could
be shared among powerful, faceless institutions.”199 This sentiment makes
sense. As the Supreme Court noted in Shapiro v. Thompson, “the nature
of our Federal Union and our constitutional concepts of personal liberty
unite to require that all citizens be free to travel throughout the length and
breadth of our land uninhibited by statutes, rules, or regulations which
unreasonably burden or restrict this movement.”200
Yet, as previously noted, in most places, people subject to punitive
surveillance cannot leave their homes, change their schedules, or take a
different route home without permission. Still, other terms limit where
people can go and with whom they can interact.201 Although not as
195

Bridges, supra note 46, at 5.
See Capers, supra note 46, at 676.
197
See Pell v. Procunier, 417 U.S. 817, 822 (1974); Cruz v. Beto, 405 U.S. 319, 322 (1972);
Cooper v. Pate, 378 U.S. 546 (1964); Sobell v. Reed, 327 F. Supp. 1294, 1304 (S.D.N.Y.
1971).
198
See Alex Abdo, Why Rely on the Fourth Amendment to Do the Work of the First?, 127
Yale L.J.F. 444, 451 (2017) (“[T]he Supreme Court has recognized the overlapping concerns
of the First and Fourth Amendments.”).
199
Stuart Thompson & Charlie Warzel, Where Even the Children Are Being Tracked, N.Y.
Times (Dec. 21, 2019), https://www.nytimes.com/interactive/2019/12/21/opinion/pasadenasmartphone-spying.html?fbclid=IwAR0Z93xoaDDIC1KtHhsry72XdFKbLi2vobvqVF54bi9PCtaXY0kM4UAEmg [https://perma.cc/8L62-MUQS].
200
Shapiro v. Thompson, 394 U.S. 618, 629 (1969).
201
See supra Section I.C.
196

180

Virginia Law Review

[Vol. 108:147

restrictive as prison, the liberty limitations are like those in prison—the
difference is a matter of degree, not of kind.
As a descriptive matter, people on probation and parole retain some—
albeit limited—liberty interests.202 A minority of courts have found that
electronic surveillance improperly infringes on these liberty interests. As
Federal District Court Judge Jack Weinstein explained in the context of
pretrial release, electronic monitoring that inhibits “straying beyond
spatial home property limits, like those used to restrain pet dogs, are
intrusive.”203 Indeed, he reasoned, the “right to travel from one place to
another free of hindrances is a well-established aspect of constitutionally
protected private freedom.”204 As another court explained, a person on a
monitor “may have to leave his or her location in search of a signal or
may be required to travel to a location where the device can be charged.
These frequent interruptions can endanger an individual’s livelihood.”205
The New Jersey Supreme Court described in detail the liberty constraints
that accompany electronic monitoring:
Riley is tethered to an electronic device that must be recharged every
sixteen hours, and therefore he cannot travel to places where there are
no electrical outlets. In addition to the requirement that he tell his parole
officer before he leaves the State, Riley cannot travel to places without
GPS reception because his tracker will be rendered inoperable and his
parole officer will be unable to monitor his whereabouts.206

Although these courts recognize the liberty intrusions caused by
punitive surveillance, most courts do not. The rhetoric of rehabilitation
and benevolence masks the way that “alternatives” to incarceration, such

202

Morrissey v. Brewer, 408 U.S. 471, 482 (1972).
United States v. Polouizzi, 697 F. Supp. 2d 381, 391 (E.D.N.Y. 2010).
204
Id. at 390.
205
Commonwealth v. Norman, 142 N.E.3d 1, 9–10 (Mass. 2020); see also Commonwealth
v. Cory, 911 N.E. 2d 187, 196–97 (Mass. 2009) (internal citation omitted) (finding that
mandatory imposition of GPS ankle monitoring as a condition of probation raised liberty
concerns); United States v. Smedley, 611 F. Supp. 2d 971, 975 (E.D. Mo. 2009) (holding that
imposing home detention with electronic monitoring as condition of release impinged on
liberty interest); United States v. Merritt, 612 F. Supp. 2d 1074, 1079 (D. Neb. 2009) (stating
that in the context of pretrial release “[a] curfew with electronic monitoring restricts the
defendant's ability to move about at will and implicates a liberty interest protected under the
Due Process Clause”); State v. Stines, 683 S.E.2d 411, 418 (N.C. Ct. App. 2009) (holding that
requiring enrollment in satellite-based monitoring program deprives an offender of a
significant liberty interest).
206
Riley v. New Jersey Parole Bd., 98 A.3d 544, 559 (N.J. 2014).
203

2022]

Punitive Surveillance

181

as electronic monitoring, can “inflict larger deprivations of liberty and
volition” than more explicitly punitive programs.207 Punitive surveillance
also makes rule violations easy to detect, and when reincarcerated for
technical violations, people lose jobs, miss out on educational
opportunities, and endure strain on their family relationships.208
Accounts from people who have been subjected to punitive
surveillance bring into sharp focus the liberty interests at stake. Some
describe an ankle monitor as the equivalent of a modern-day slave
shackle, and others describe the feeling of being caged, or on a leash like
an animal.209 This view, however, is not reflected in current law. Most
courts conclude that electronic monitoring does not overly burden liberty
interests,210 and no court has concluded that monitoring is a form of
incarceration. That said, in some places, electronic monitoring counts as
custody time for purposes of calculating sentences,211 and removing a
GPS device, or leaving homes without permission is unlawful and may
often be prosecuted as escape.212 This suggests that there is at least some
207

Francis A. Allen, The Decline of the Rehabilitative Ideal 49 (1981); Doherty, Testing
Periods, supra note 58, at 1788.
208
Kirk, supra note 9, at 643.
209
The Voices of the Monitored-Video and Audio Gallery, Challenging E-Carceration (Mar.
24, 2018), https://www.challengingecarceration.org/watch-videos [https://perma.cc/HKT3HB3V].
210
See, e.g., Jackson v. United States, 214 A.3d 464, 474 (D.C. 2019) (noting that the
Supreme Court has found that people on probation do not enjoy the same liberty to which all
citizens are entitled); State v. Muldrow, 900 N.W.2d 859, 869–70 (Wis. 2017) (finding that
the intent and effect of GPS tracking are not punitive); Belleau v. Wall, 811 F.3d 929, 936
(7th Cir. 2016) (finding that GPS tracking simply “identifies locations” and does not reveal
what the person is doing at any location).
211
See People v. Raygoza, 2 Cal. App. 5th 593, 601 (2016); State v. Byam, 172 A.3d 171,
¶ 18 (Vt. 2017) (explaining that a “defendant is entitled to credit when the court orders the
defendant released pursuant to the statutory home detention program . . . or the electronic
monitoring program”); Johnson v. State, 180 A.3d 260 (Md. Ct. Spec. App. 2018) (holding
that home detention qualifies as custody); U.S. Sent’g Guidelines Manual § 5C1.1(e)(3) (U.S.
Sent’g Comm’n 2018) (stating that one day under home confinement is equivalent to one day
of imprisonment).
212
See Brown v. State, 723 S.E.2d 112, 114–15 (Ga. Ct. App. 2012); Commonwealth. v.
Wegley, 791 A.2d 1223, 1226 (Pa. Super. Ct. 2002); State v. Chinn, 91 So. 3d 420, 423 (5th
Cir. 2012) (holding that a defendant under home incarceration could be prosecuted for escape);
Alaska Stat. § 11.56.320(a)(3)–(4) (2019); Interference with Monitoring Devices, 2006 Ariz.
Sess. Laws 1530, § 13-3725; Absconding, 1999 Ark. Acts 2846–47, § 5-54-131; Colo. Rev.
Stat. § 17-1-102 (2014); Conn. Gen. Stat. C.G.S. § 53a-115 (2005); D.C. Code. § 22-1211
(2009); Fla. Stat. § 843.23 (2016); Ga. Code Ann., § 16-7-29 (2016); 730 Ill. Comp. Stat. 5/58A-4.1 (2008); Ind. Code § 35-44.1-3-4(b) (2018) (“[V]iolates a home detention order or
intentionally removes an electronic monitoring device or GPS tracking device commits
escape, a Level 6 felony.”); La. Stat. Ann. § 14:79.2 (2003); Mass. Gen. Laws ch. 268 § 16

182

Virginia Law Review

[Vol. 108:147

recognition that monitoring is a form of punitive custody that restricts
liberty. The disconnect in the law between the deprivation of liberty
interests not recognized as a form of incarceration on the one hand, and
monitoring counting as custody for purposes of term sentencing is
discussed in greater depth in Part III.
D. Due Process Restrictions
The role of third parties and the general opacity of punitive surveillance
raise several procedural due process concerns. On the front end, punitive
surveillance is often imposed with little opportunity for defendants or
their advocates to challenge the decision. In some jurisdictions, electronic
monitoring is mandatory for people convicted of certain serious
offenses.213 But even in jurisdictions where the imposition is
discretionary, there are rarely guidelines or regulations about who is
placed on a monitor, for how long, and under what conditions. The
decisions are ad hoc, either by a judge, probation officer, or parole
officer.214
There are also due process concerns with respect to determining the
terms and conditions of punitive surveillance, as well as the user fees. As
noted previously, punitive surveillance is imposed in the shadows; the
contours of a person’s punishment are defined not by a judge and with the
benefit of an adversarial process, but by public and private
administrators.215 These agency actors and private vendors act as a sort of

(2018); Mo. Rev. Stat. § 575.205 (2021); N.M. Stat. Ann. § 30-22-8.1 (1999); N.C. Gen. Stat.
§ 14-226.3 (2009); S.C. Code Ann. § 23-3-540 (1976); Tenn. Code Ann. § 40-39-304 (1994);
Va. Code Ann. § 53.1-131.2 (2020); Wash. Rev. Code § 9A.76.130 (2015).
213
Eisenberg, supra note 9, at 125 (cataloging states with mandatory GPS monitoring for
certain sex offense cases).
214
See State v. Mendoza, 258 P.3d 383, 385 (Kan. 2011) (parole board has authority to
impose electronic monitoring); State v. F.W., 129 A.3d 359, 368 (N.J. Super. Ct. App. Div.
2016) (same); Randall v. Cockrell, No. 3-02-CV-0648-G, 2002 WL 31156704, at *2 (N.D.
Tex. Sept. 25, 2002) (same); 730 Ill. Comp. Stat. Ann. 5/3-3-7 (same); Jackson v. United
States, 214 A.3d 464, 480 (D.C. 2019) (sanctioning the practice of probation officers, not
judges, deciding if and when to place people on electronic monitors).
215
See Feeley, supra note 142, at 39, 83–84 (detailing the influence of private contractors
in expanding the use of electronic monitoring).

2022]

Punitive Surveillance

183

entrepreneur, defining how surveillance operates,216 and further shielding
it from public, or even judicial, scrutiny.217
There are additional due process considerations on the back end.
People on probation and parole already have limited due process
protections in revocation hearings218 and these limitations are exacerbated
when viewed in the context of punitive surveillance. Challenging
probation and parole violations is difficult not just because of the limited
procedural protections, but because electronic evidence itself is not easy
to confront. Take, for example, an alleged probation violation based on a
text message or an image found on the defendant’s phone. An
unrepresented defendant facing revocation must attempt to challenge the
authenticity and reliability of the evidence, which is not easy to confront
given the nature of digital evidence.219 It is equally difficult, if not
impossible, for an unrepresented defendant to “confront” GPS cellphone
data that shows that the defendant was, for example, out past curfew or in
a prohibited geographical area. The problems of understanding,
challenging, and confronting digital evidence echo the due process
concerns identified by privacy scholars in the context of Big Data
analytics; the only difference is the status of the person subject to
surveillance.220
For the most part, courts are reluctant to find due process problems
with punitive surveillance. The only due process concern to gain any legal
traction is with respect to mandatory GPS tracking for people either
charged with or convicted of certain sex offenses. While a few federal
district courts found that mandatory GPS monitoring laws violated due

216

See Andrea Roth, “Spit and Acquit”: Prosecutors as Surveillance Entrepreneurs, 107
Calif. L. Rev. 405, 436 (2019).
217
See Citron, supra note 154, at 1254 (describing how the opacity of automated systems
“shields them from scrutiny”).
218
Gagnon v. Scarpelli, 411 U.S. 1756, 1763 (1973) (setting forth due process rights for
people on probation); Morrissey v. Brewer, 408 U.S. 471 (1972) (setting forth due process
rights for people on parole).
219
See Andrea Roth, Machine Testimony, 126 Yale L.J. 1972, 1988 (2017) (addressing the
challenge of confronting evidence that is not from a live witness).
220
Kate Crawford & Jason Schultz, Big Data and Due Process: Toward a Framework to
Redress Predictive Privacy Harms, 55 B.C. L. Rev. 93, 93 (2014) (arguing that Big Data has
created poorly secured and readily available personal profiles for many); Citron, supra note
154, at 1254 (stating that data is opaque and difficult for citizens to challenge).

184

Virginia Law Review

[Vol. 108:147

process,221 most federal circuits have found no due process problems with
mandatory GPS monitoring.222
III. INCOHERENCIES IN PUNISHMENT JURISPRUDENCE
As Parts I and II demonstrate, punitive surveillance abridges, if not
outright extinguishes, a host of constitutional rights. This Part examines
the legal justifications for the diminishment of rights that accompany
punitive surveillance. In doing so, it reveals how the current doctrinal
regime has thus far failed to recognize the carceral nature of punitive
surveillance. Part of the problem is definitional, as the line between
incarceration and punishment is slippery: sometimes incarceration
(including e-carceration) does not involve what the law views as
punishment (like in the pretrial setting or civil commitment) and
sometimes punishment does not involve incarceration (like probation and
parole). These blurred lines help explain the challenge of regulating and
limiting the use of punitive surveillance.
Two interwoven strands of punishment jurisprudence guide the inquiry
into how the law treats punitive surveillance. On the one hand, people in
the criminal legal system do not “forfeit all constitutional protections,”223
and just as “there is no iron curtain drawn between the Constitution and
the prisons of this country,”224 there is no curtain between the Constitution
and people sentenced to punishment outside of prison. But on the other
hand, as punitive surveillance demonstrates, people in the criminal legal
system do forfeit some rights: so long as the deprivation of a fundamental
221

United States v. Polouizzi, 697 F. Supp. 2d 381, 383 (E.D.N.Y. 2010); United States v.
Karper, 847 F. Supp. 2d 350, 352 (N.D.N.Y. 2011); United States v. Stephens, 669 F. Supp.
2d 960 (N.D. Iowa 2009); United States v. Blaser, 390 F. Supp. 3d 1306, 1317 (D. Kan. 2019).
222
United States v. Gardner, 523 F. Supp. 2d 1025, 1034 (N.D. Cal. 2007); United States v.
Stephens, 594 F.3d 1033 (8th Cir. 2010); United States v. Cossey, 637 F. Supp. 2d 881 (D.
Mont. 2009); United States v. Campbell, 309 F. Supp. 3d 738, 738–39 (D.S.D. 2018).
223
Bell v. Wolfish, 441 U.S. 520, 545 (1979); see also Morrissey, 408 U.S. at 482 (“[T]he
liberty of a parolee, although indeterminate, includes many of the core values of unqualified
liberty.”); Griffin v. Wisconsin, 483 U.S. 868, 875 (1987) (“[The] degree of impingement
upon [a probationer’s] privacy . . . is not unlimited . . . .”); United States v. Knights, 534 U.S.
112, 119 (2001) (“Inherent in the very nature of probation is that probationers ‘do not enjoy
the absolute liberty to which every citizen is entitled.’”); State v. Jackson, 917 P.2d 34 (1996)
(finding where fundamental rights are involved, sentencing court has less discretion to impose
probation conditions which are in conflict therewith); Commonwealth v. Feliz, 119 N.E.3d
700, 711 (Mass. 2019) (“[T]he government does not have an ‘unlimited’ ability to infringe
upon a probationer’s still-existing, albeit diminished, expectations of privacy.”).
224
Wolff v. McDonnell, 418 U.S. 539, 555–56 (1974).

2022]

Punitive Surveillance

185

right is related to a purpose of punishment, it passes constitutional
muster.225 As a result, punitive surveillance is currently immune from
substantive limits on the deprivation of rights.
In this Part, I challenge this result and explain how punitive
surveillance exposes critical gaps in punishment jurisprudence. These
incoherencies explain why punitive surveillance has not been correctly
recognized as punishment and, even when correctly labeled, why existing
law offers little guidance as to its constitutional limits.226
A. Punitive Surveillance as a Condition of Punishment
An underappreciated reason that punitive surveillance has escaped
close constitutional scrutiny is because it is often misclassified as a
condition of punishment (not punishment itself) that need only be justified
as related to a purpose of punishment. This circular logic almost always
results in punitive surveillance—as well as other forms of punishment—
being upheld as constitutional. Classifying punitive surveillance as a
condition of punishment raises four specific concerns.
First, the surveillance inherent in punitive surveillance is in fact the
punishment, and not a condition of punishment. This is distinct from
surveillance in prisons, where surveillance, in theory, facilitates and
allows for the operation of safe prisons.227 For example, limits on
communication between people in prison is not imposed as “punishment,”
225
See, e.g., United States v. Hughes, 964 F.2d 536, 542 (6th Cir. 1992) (rejecting First
Amendment challenge to a probation condition because the condition was “designed to meet
the ends of rehabilitation and protect the public” (quoting United States v. Peete, 919 F.2d
1168, 1181 (6th Cir. 1990))); United States v. Bolinger, 940 F.2d 478, 480–81 (9th Cir. 1991)
(finding that a probation condition prohibiting membership in a motorcycle club did not
infringe on freedom of association because the condition was related to rehabilitation and
public safety); Rizzo v. Terenzi, 619 F. Supp. 1186, 1190 (E.D.N.Y. 1985) (upholding parole
prohibition on travel on the basis that it relates to supervision and rehabilitation).
226
Other scholars have pointed out a similar lack of coherence in parole and probation
jurisprudence. See Jacob Hutt, Offline: Challenging Internet and Social Media Bans for
Individuals on Supervision for Sex Offenses, 43 N.Y.U. Rev. L. & Soc. Change 663, 674
(2019); Doherty, Obey All Laws, supra note 54, at 328; Phaedra Athena O’Hara Kelly, The
Ideology of Shame: An Analysis of First Amendment and Eighth Amendment Challenges to
Scarlet-Letter Probation Conditions, 77 N.C. L. Rev. 783, 838 (1999).
227
See, e.g., Pell v. Procunier, 417 U.S. 817, 822 (1974) (“[A] prison inmate retains those
First Amendment rights that are not inconsistent with his status as a prisoner or with the
legitimate penological objectives of the corrections system.”); Overton v. Bazzetta, 539 U.S.
126, 133 (2003) (rejecting First Amendment challenge because the regulation in question
“bears a self-evident connection to the State’s interest in maintaining prison security and
preventing future crimes”).

186

Virginia Law Review

[Vol. 108:147

but rather as a necessary condition that, in theory, helps preserve safety.228
Punitive surveillance, on the other hand, is imposed as punishment, in part
because it is meant to be a substitute for incarceration.229 Punitive
surveillance, probation, and parole, like a prison sentence, are imposed by
courts and, like prison, have their own rules and conditions, but it is the
surveillance that is punitive. The surveillance is not ancillary. The
surveillance is the punishment.230 This is consistent with the Seventh
Circuit’s conclusion that for people on parole, “the ‘conditions’ are the
confinement.”231
Second, viewing punitive surveillance as a condition of punishment (as
opposed to punishment itself) removes it from close constitutional
scrutiny. Generally speaking, courts review conditions of prison,
probation, and parole under a similar standard: so long as the condition
reasonably relates to a goal of punishment or supervision (such as
rehabilitation, punishment, or public or prison safety) the condition is
upheld.232 When conditions of probation and parole are struck down, it is
usually on reasonableness grounds,233 but those cases are far and few
between.

228
Turner v. Safley, 482 U.S. 78, 91 (1987) (“[I]nmate-to-inmate
correspondence . . . reasonably relate[s] to legitimate security interests” in prison
administration.”).
229
See, e.g., Michelle S. Phelps, The Paradox of Probation: Community Supervision in the
Age of Mass Incarceration, 35 Law & Pol’y 51, 52 (2013) (describing probation as both a net
widener and an alternative to traditional incarceration); Cecelia Klingele, Rethinking the Use
of Community Supervision, 103 J. Crim. L. & Criminology 1015, 1018 (2013) (addressing
how community supervision is intended as an alternative to incarceration, despite not
operating as such).
230
See infra Section II.C for further discussion of punitive surveillance as punishment.
231
Williams v. Wisconsin, 336 F.3d 576, 579 (7th Cir. 2003).
232
See, e.g., Porth v. Templar, 453 F.2d 330, 334 (10th Cir. 1971) (finding a person on
probation “forfeits much of his freedom of action and even freedom of expression to the extent
necessary to successful rehabilitation and protection of the public programs”); United States
v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir. 1975) (en banc) (“Conditions that
unquestionably restrict otherwise inviolable constitutional rights may properly be subject to
special scrutiny to determine whether the limitation does in fact serve the dual objectives of
rehabilitation and public safety.”).
233
See, e.g., United States v. Harris, 794 F.3d 885, 889 (8th Cir. 2015) (striking down a safe
sex provision); Trammell v. State, 751 N.E.2d 283, 291 (Ind. Ct. App. 2001) (striking down a
no procreation condition of probation); State v. Evans, 796 P.2d 178, 178 (Kan. Ct. App. 1990)
(striking down compulsory church attendance as violation of free exercise clause); Sweeney
v. United States, 353 F.2d 10, 11 (7th Cir. 1965) (invalidating as unreasonable a probation
condition prohibiting an alcoholic from drinking).

2022]

Punitive Surveillance

187

For the most part, courts deploy the reasonably-related justification to
uphold various forms of punitive surveillance.234 For example, in
upholding electronic monitoring, the Supreme Judicial Court of
Massachusetts focused on the fact that GPS monitoring in the context of
probation was “imposed on the defendant for the legitimate probationary
purposes” of “deterring the probationer from engaging in criminal activity
and detecting such criminal activity if it occurs.”235 In this way, any
condition of release is potentially justified so long as it “reasonably
relates” to rehabilitation, public safety, or punishment.236
Likewise, in United States v. Jackson, the D.C. Court of Appeals
upheld the practice of probation officers sharing GPS location data with
police on the grounds that a “primary objective of probationary
supervision is the ‘protection of society from future criminal violations’”
and “[c]ooperation with and enlistment of the police are means of
accomplishing that objective.”237 By this logic, almost any type of
surveillance could be justified as related to “protection of society.”
The reasonably-related approach is akin to the general Fourth
Amendment reasonableness test relied on in Samson v. California to
uphold suspicionless searches of people on parole.238 Courts sometimes
deploy these two approaches together and interchangeably when
addressing surveillance of people on court supervision.239 In prior work,
I challenge the reasonableness of punitive surveillance,240 but to date,
only a few courts have struck down punitive surveillance on Fourth
Amendment reasonableness grounds.241
234
See United States v. Jackson, 214 A.3d 464, 484 (D.C. 2019) (finding probation officers
can share information with police even if it would not have been lawful for police to gather it,
because their aims are related); Commonwealth v. Johnson, 119 N.E.3d 669, 680 (Mass.
2019), cert. denied sub nom. Johnson v. Massachusetts, 140 S. Ct. 247 (2019) (finding GPS
monitoring reasonable due to its legitimate probationary purposes); United States v. Lambus,
897 F.3d 368, 408 (2d Cir. 2018).
235
Johnson, 119 N.E.3d at 680.
236
Commonwealth v. Pike, 701 N.E.2d 951, 959 (Mass. 1998); United States v. Tonry, 605
F.2d 144, 148 (5th Cir. 1979); United States v. Pierce, 561 F.2d 735, 739 (9th Cir. 1977).
237
Jackson, 214 A.3d at 484 (quoting Washington v. United States, 8 A.3d 1234, 1235 (D.C.
2010)).
238
See Samson v. California, 547 U.S. 843, 844 (2006).
239
See Jackson, 214 A.3d at 484; Johnson, 119 N.E.3d at 680.
240
See Weisburd, Sentenced to Surveillance, supra note 9.
241
See Commonwealth v. Norman, 142 N.E.3d 1, 10 (Mass. 2020) (finding that the use of
GPS monitoring for a defendant’s pretrial release did not prove reasonable under the Fourth
Amendment); Commonwealth v. Feliz, 119 N.E.3d 700, 704–05 (Mass. 2019) (finding that
state concerns did not outweigh privacy intrusion for GPS monitoring of parolee); State v.

188

Virginia Law Review

[Vol. 108:147

For the most part, the reasonably-related standard is relatively
amorphous242 and is often applied in a circular way “such that the
government almost always wins.”243 As Justice Stevens noted in the
context of challenges to prison conditions, if the “reasonably-related”
standard can be satisfied by “nothing more than a ‘logical connection’
between the regulation and any legitimate penological concern perceived
by a cautious warden, . . . it is virtually meaningless” and would allow for
the extinguishment of constitutional rights “whenever the imagination of
the warden produces a plausible security concern.”244 Although a few
courts have struck down punitive surveillance as unreasonable, they are
currently in the minority.245 This is hardly surprising, given that in the
context of prisons and other institutions the Supreme Court “proceeds
from the assumption of a need for almost complete judicial deference to
the governing authority.”246
Third, classifying punitive surveillance as a condition assumes that
consent is a sufficient checkpoint on the degree to which the government
may strip people of rights.247 Either explicitly or implicitly, the erasure of
rights that accompany punitive surveillance is premised on the idea that
the person consented to such erasure in exchange for avoiding
incarceration.248 But consent is a convenient way for courts to avoid
Grady, 831 S.E.2d 542, 556 (N.C. 2019) (finding that the State “never actually identifie[d]
any special need” that would justify an intrusion on defendant’s privacy); State v. Gordon,
820 S.E.2d 339, 339 (N.C. Ct. App. 2018) (finding the “[s]tate failed to meet its burden of
showing that implementation of [defendant’s] satellite-based monitoring” was reasonable
under the Fourth Amendment).
242
See Cynthia Lee, Reasonableness with Teeth: The Future of Fourth Amendment
Reasonableness Analysis, 81 Miss. L.J. 1133, 1136 (2012).
243
Barry Friedman & Cynthia Benin Stein, Redefining What’s “Reasonable”: The
Protections for Policing, 84 Geo. Wash. L. Rev. 281, 297 (2016).
244
Turner v. Safley, 482 U.S. 78, 100–01 (1987) (Stevens, J., dissenting) (emphasis
omitted).
245
A small minority of courts have struck down surveillance conditions on Fourth
Amendment grounds. See Norman, 142 N.E.3d at 10; Feliz, 119 N.E.3d at 692–93; Grady,
831 S.E.2d at 556; Gordon, 380 S.E.2d at 339.
246
Chemerinsky, supra note 21, at 441.
247
In prior work, I address consent as a possible justification that avoids Fourth Amendment
scrutiny. See Weisburd, Sentenced to Surveillance, supra note 9, at 736.
248
See, e.g., United States v. McCoy, 847 F.3d 601, 605 (8th Cir. 2017) (upholding
electronic search clause because defendant agreed to it as a condition of release); 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”);
People v. Thornburg, 895 N.E.2d 13, 23–24 (Ill. App. Ct. 2008) (upholding computer search
term based on defendant’s consent to the terms); State v. Gonzalez, 862 N.W.2d 535, 542

2022]

Punitive Surveillance

189

difficult constitutional questions. If consent were removed from the
calculation—if bargaining over conditions were impossible—it is likely
that prosecutors would ask for, and judges would impose, punitive
surveillance as part of an actual sentence. And in fact, punitive
surveillance is often imposed without an option for the defendant to “opt
out.” 249
Fourth and finally, designating surveillance as a condition (and not
punishment) also removes it from Eighth Amendment scrutiny. Harsh
conditions of punishment are often not governed by the Eighth
Amendment because they are “part of the penalty that criminal offenders”
must pay.250 In other words, under current doctrine, some conditions of
punishment are meant to be extremely unpleasant (as a part of the
punishment) and unless they rise to the level of being unusual or cruel,
the Eighth Amendment is inapplicable.
At the same time, harsh conditions related to punishment are also not
often afforded Eighth Amendment protections because the deprivations
are “not punishment,” but merely unpleasant ancillary conditions.251 As
Justice Scalia opined, the Eighth Amendment may be inapplicable if “the
pain inflicted is not formally meted out as punishment by the statute or
the sentencing judge . . . .”252 In the context of challenges to prison
conditions, the “Eighth Amendment permits some harsh conditions
because they are part of the intended penalty, and the Eighth Amendment
permits other harsh conditions because they are not part of the intended
penalty.”253 Just as this doctrinal scheme is arguably unsound and results
(N.D. 2015) (upholding computer search condition on the grounds that “the probationer
consents to warrantless searches . . . when he accepts the conditions of probation”).
249
See Weisburd, Sentenced to Surveillance, supra note 9, at 741 (describing circumstances
when defendants are not given the opportunity to “opt out” of supervision conditions).
250
Rhodes v. Chapman, 452 U.S. 347 (1981).
251
See Springer v. United States, 148 F.2d 411, 415 (9th Cir. 1945) (“The conditions of
probation are not punitive in character and the question of whether or not the terms are cruel
and unusual and thus violative of the Constitution of the United States does not arise for the
reason that the Constitution applies only to punishment.”); State v. Macy, 403 N.W.2d 743,
745 (S.D. 1987) (holding that because probation is not a sentence but a sentence alternative,
the Eighth Amendment does not apply); State v. Muldoon, 767 P.2d 16, 19 (Ariz. 1988)
(“Probation is not a sentence.”); United States v. Balogun, 146 F.3d 141, 146 (2d Cir. 1998)
(asserting that supervised-release term not used to punish defendant, but rather to ease
defendant’s transition from prison life to community life); Farmer v. Brennan, 511 U.S. 825,
859 (1994) (Thomas, J., concurring) (“Conditions of confinement are not punishment in any
recognized sense of the term, unless imposed as part of a sentence.”).
252
Wilson v. Seiter, 501 U.S. 294, 300 (1991).
253
Alice Ristroph, Sexual Punishments, 15 Colum. J. Gender & L. 139, 163 (2006).

190

Virginia Law Review

[Vol. 108:147

in little protection for incarcerated people,254 labeling punitive
surveillance as an ancillary condition—as compared to the actual
punishment—is both inaccurate and effectively removes it from
meaningful scrutiny.
B. Punitive Surveillance as Regulatory
Punitive surveillance is also sometimes viewed as a type of nonpunitive restriction or collateral consequence, such as losing the right to
own a gun, serve on a jury, or becoming subject to deportation, to name a
few.255 There are two reasons why this classification is both inaccurate
and results in less constitutional scrutiny.
First, electronic monitoring is sometimes, but not always, imposed as
a regulatory measure,256 which may explain some of the confusion. When
imposed in the context of pretrial release, electronic monitoring, like
pretrial detention, is a form of preventative detention, not punishment—
at least as a legal matter. In United States v. Salerno, the Supreme Court
concluded that pretrial detention is permissible regulation and not
“impermissible punishment.”257 Presumably, the same reasoning applies
to pretrial surveillance.
Similarly, restraints that are imposed on people who have completed a
criminal sentence (such as involuntary civil commitment and sex offender
registries) are, as a legal matter, civil regulations and not punishment.258
Several courts have extended this reasoning to the use of electronic
surveillance for people who have completed their sentence. For example,
in the context of lifetime GPS monitoring for people convicted of certain
sex offenses, the U.S. Court of Appeals for the Seventh Circuit
254

See Margo Schlanger, The Constitutional Law of Incarceration, Reconfigured, 103
Cornell L. Rev. 357, 385 (2018); Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth
Amendment, 84 N.Y.U. L. Rev. 881, 909 (2009).
255
See Margaret Colgate Love, Jenny Roberts & Wayne A. Logan, Collateral Consequences
of Criminal Conviction: Law Policy & Practice 251–306 (2018–19 ed.); Gabriel J. Chin, The
New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. Pa. L. Rev.
1789, 1806 (2012); Eisenberg, supra note 9, at 160.
256
Avlana K. Eisenberg, Discontinuities in Criminal Law, 22 Theoretical Inquiries L. 137,
148 (2021).
257
United States v. Salerno, 481 U.S. 739, 745–46 (1987) (“[T]he mere fact that a person is
detained does not inexorably lead to the conclusion that the government has imposed
punishment” because the detention “would be permissible [if it] . . . serve[d] the basic
objective of a criminal system.”).
258
Kansas v. Hendricks, 521 U.S. 346, 368–69 (1997); Smith v. Doe, 538 U.S. 84, 95–96
(2003).

2022]

Punitive Surveillance

191

determined that the state’s monitoring law was “not punishment; [but]
prevention.”259 The court explained that “[h]aving to wear the monitor is
a bother, an inconvenience, an annoyance, but no more is punishment than
being stopped by a police officer on the highway and asked to show your
driver's license is punishment.”260 The court reasoned that “if civil
commitment is not punishment, as the Supreme Court has ruled, then a
fortiori neither is having to wear an anklet monitor.”261 The Seventh
Circuit is hardly an outlier. Most lower courts have concluded that ankle
monitoring applied in the context of pretrial release or post-sentence
supervision is a form of civil restraint.262
In contrast, punitive surveillance imposed as part of probation or parole
is decidedly not regulatory. Punitive surveillance imposed by a court as
part of a sentence or as part of punishment is legally distinct from punitive
surveillance imposed in the context of pretrial release or post-sentence
restraints.263
That said, the line between regulatory restraints and punishment may
be shifting.264 A growing number of courts have found that lifetime GPS
monitoring is, in fact, a form of punishment.265 In Michigan, the state
appellate court found the imposition of lifetime GPS monitoring for
people convicted of certain sex offenses was considered to be part of the
actual sentence.266 Similarly, the New Jersey State Supreme Court
accepted that the state law requiring lifetime monitoring was created as a

259

Belleau v. Wall, 811 F.3d 929, 937 (7th Cir. 2016).
Id.
261
Id.
262
See Doe v. Bredesen, 507 F.3d 998, 1004 (6th Cir. 2007); State v. Bowditch, 700 S.E.2d
1, 13 (N.C. 2010); State v. Muldrow, 900 N.W.2d 859, 870 (Wis. Ct. App. 2017); Doe v.
Coupe, 143 A.3d 1266, 1281 (Del. Ch. 2016); In re Justin B., 747 S.E.2d 774, 783 (S.C. 2013);
State v. Trosclair, 89 So. 3d 340, 357 (La. 2012).
263
See supra Section II.C.
264
See Jenny Roberts, Gundy and the Civil-Criminal Divide, 17 Ohio St. J. Crim. L. 207,
210–11 (2019) (claiming “[the] dividing line is far from clear” between “[t]he division of
consequences into ‘civil’ and ‘criminal’ categories”); Joshua Kaiser, We Know It When We
See It: The Tenuous Line Between “Direct Punishment” and “Collateral Consequences,” 59
How. L.J. 341, 366 (2016) (“The notion of punishment, as we commonly understand it, cuts
across the division between the civil and the criminal law.” (quoting United States v. Halper,
490 U.S. 435, 447–48 (1989))).
265
See Riley v. New Jersey Parole Bd., 98 A.3d 544, 560 (N.J. 2014); Commonwealth v.
Cory, 911 N.E.2d 187, 196–97 (Mass. 2009) ; People v. Cole, 491 Mich. 325, 336 (Mich.
2012); Doe v. Rausch, 382 F. Supp. 3d 783, 799 (E.D. Tenn. 2019).
266
People v. Hallak, 873 N.W.2d 811, 820–21 (Mich. Ct. App. 2015), rev’d in part on other
grounds, 499 Mich. 879 (2016).
260

192

Virginia Law Review

[Vol. 108:147

“civil regulatory scheme” but concluded that, in practice, it was an
“indefinite form[] of parole.”267
As other scholars have pointed out, there are compelling reasons to
reject classifying pretrial detention, registries, and other so-called
“collateral consequences” as non-punitive.268 And the same critique
applies to punitive surveillance: the experience of being on a GPS ankle
monitor is equally punitive whether someone is on pretrial release or
probation.
Second, the implications of classifying punitive surveillance as
regulatory are significant.269 In some ways, regulatory measures have
greater protections and in other ways fewer, but the protections afforded
to regulatory measures are distinct from those afforded to punishment.270
On the one hand, regulatory measures are subject to substantive due
process challenges and are afforded greater First and Fourth Amendment
protections. For example, in evaluating the First Amendment rights of
people on sex-offender registries (a civil restraint), the Court’s reasoning
rested on the premise that the defendants “already . . . served their
sentence and are no longer subject to the supervision of the criminal
justice system.”271 Lower courts followed suit, reaffirming the view that
restrictions on both First and Fourth Amendment rights are more
troubling when they are “extended beyond the completion of [the

267

Riley, 98 A.3d at 554–55.
Chin, supra note 254, at 1832; Eisha Jain, Prosecuting Collateral Consequences, 104
Geo. L.J. 1197, 1199 (2016).
269
Murphy, supra note 12, at 1351.
270
See Sandra G. Mayson, Collateral Consequences and the Preventive State, 91 Notre
Dame L. Rev. 301, 340 (2015) (making the case that classifying collateral consequences as
punishment comes with significant costs and affords fewer avenues to challenge the
restrictions).
271
Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017) (striking down on First
Amendment grounds an internet ban for people convicted of certain sex offenses).
268

2022]

Punitive Surveillance

193

defendant’s] sentence”272 and that those still subject to state punishment
are not afforded the same protections.273
On the other hand, regulatory measures are not subject to Eighth
Amendment and Ex Post Facto Clause limitations precisely because they
are not considered punishment as a matter of law. In short, it is inaccurate
to characterize all punitive surveillance as regulatory, as it is just as
often—if not more often—imposed as a form of punishment.
C. Punitive Surveillance as Punishment
Several scholars, myself included, have highlighted the ways that
punitive surveillance is a form of punishment,274 but current doctrine is
not so definitive. As Erin Murphy observes, “technological restraints—
which impose harm in predominantly nonphysical forms—are rarely
found to constitute punitive restraints.”275 It is also the case that judicial
attempts “to identify ‘punishment’ . . . [have] been conceptually
muddled, to say the least.”276 Although the Supreme Court generally
views probation and parole as forms of criminal punishment,277 as noted
in the prior sections, many lower courts do not regard punitive
272

United States v. Browder, 866 F.3d 504, 511 n.26 (2d Cir. 2017); see also State v. Grady,
831 S.E.2d 542, 559–60 (N.C. 2019) (noting that Fourth Amendment concerns are heightened
with “respect to unsupervised individuals like defendant who, unlike probationers and
parolees, are not on the ‘continuum of possible [criminal] punishments’ and have no ongoing
relationship with the State”); Friedman v. Boucher, 580 F.3d 847, 858 (9th Cir. 2009) (finding
that nonconsensual DNA collection was an unreasonable because “Friedman was not on
parole. He had completed his term of supervised release successfully and was no longer the
supervision of [sic] any authority”).
273
See Browder, 866 F.3d at 511 n.26; see also United States v. Halverson, 897 F.3d 645,
658 (5th Cir. 2018) (finding that “Packingham does not—certainly not ‘‘plainly’’—apply to
the supervised-release context”); United States v. Rock, 863 F.3d 827, 831 (D.C. Cir. 2017)
(noting that Packingham does not apply to a supervised-release condition, because such a
condition “is not a post-custodial restriction of the sort imposed on Packingham”).
274
See Weisburd, Sentenced to Surveillance, supra note 9, at 753–61 (describing how
electronic surveillance results in significant privacy intrusions); Eisenberg, supra note 9, at
136–45 (arguing that current use of electronic monitoring in the criminal justice context is
consistent with the goals of dominant punishment theories); Arnett, supra note 22, at 674–80
(arguing that electronic monitoring contributes to social marginalization).
275
See Murphy, supra note 12, at 1351.
276
Carol S. Steiker, Punishment and Procedure: Punishment Theory and the Criminal-Civil
Procedural Divide, 85 Geo. L.J. 775, 781 (1997).
277
See Griffin v. Wisconsin, 483 U.S. 868, 874 (1987); Sanford H. Kadish, Stephen J.
Schulhofer & Rachel E. Barkow, Criminal Law and Its Processes 141 (10th ed. 2017)
(“Sentences may also include other mandates, including conditions of supervised release and
probation.”).

194

Virginia Law Review

[Vol. 108:147

surveillance as punishment, choosing instead to view it as a condition of
punishment or as a civil restraint.278 Yet for the reasons herein, punitive
surveillance should be properly recognized as punishment.
The most accurate way to view punitive surveillance is an extension of
probation and parole, both of which are primarily viewed as punishment,
even if less restrictive and oppressive than prison.279 The historical
development of both probation and parole during the Progressive Era
reveal their origins as penal institutions aimed at reformation and
obedience.280 And certainly punitive surveillance reflects Jeremy
Bentham’s panopticon vision of punishment that focuses on people being
watched at all times.281 Today, the benevolent and rehabilitative rhetoric
of both probation and parole obscure the punitive nature of the
institutions.282 Contemporary probation and parole reflect what Malcolm
M. Feeley and Jonathan Simon call “the new penology,” which
emphasizes “correctional programs in terms of aggregate control and
system management rather than individual success and failure.”283
As a legal matter, determining if a measure is considered punishment
or regulatory is most often governed by the multifactor test first outlined
in Kennedy v. Mendoza-Martinez. Under that test, courts look to several
factors:
Whether the sanction involves an affirmative disability or restraint,
whether it has historically been regarded as a punishment[,] whether it
comes into play only on a finding of scienter, whether its operation will
promote the traditional aims of punishment—retribution and
deterrence, whether the behavior to which it applies is already a crime,
whether an alternative purpose to which it may rationally be connected

278

See supra Sections II.A–B.
See Doherty, Obey All Laws, supra note 54, at 328–34 (describing development of
probation systems in context of progressive worldview focused on benevolence and
rehabilitation); United States v. Gementera, 379 F.3d 596, 600–01 (9th Cir. 2004) (observing
that punishment is a recognized goal of federal supervised release); see also Commonwealth
v. Pike, 701 N.E.2d 951, 959 (Mass. 1998) (“Other goals of probation include punishment,
deterrence, and retribution.”).
280
See Klingele, supra note 229, at 1023–27 (describing the history of both probation and
parole).
281
Jeremy Bentham, Panopticon: Or, The Inspection-House (1791), reprinted in The
Panopticon Writings 29, 33–34 (Miran Božovič ed., 1995).
282
See Doherty, Obey All Laws, supra note 54, at 333–34.
283
Malcolm M. Feeley & Jonathan Simon, The New Penology: Notes on the Emerging
Strategy of Corrections and Its Implications, 30 Criminology 449, 455 (1992).
279

2022]

Punitive Surveillance

195

is assignable for it, and whether it appears excessive in relation to the
alternative purpose assigned . . . .284

The very few courts to apply this test to punitive surveillance
concluded that it was properly classified as punishment. For example, the
Massachusetts Supreme Court recently applied the Mendoza-Martinez
test in determining that mandatory GPS monitoring for people on
probation and parole was “punitive in effect.”285 The court found that
“[t]he GPS device burden[ed] liberty . . . by its permanent, physical
attachment” and “its continuous surveillance,” and found that the device
was “dramatically more intrusive and burdensome” than a yearly
registration requirement or the standard conditions of probation and
parole.286 The Alaska Supreme Court similarly recognized electronic
monitoring for people on probation as a form of incarceration.287 This
shift is consistent with the growing number of states288 and the federal
government289 that now consider various forms of supervised release a
sentence and not an alternative to a sentence. Counting time on an ankle
monitor as custody credit for purposes of term of years sentence
calculations is also consistent with the view that punitive surveillance is
a form of punishment.
A small, but arguably growing, number of courts to address the Sex
Offender Registry Acts (“SORA”), which impose restrictions similar to
punitive surveillance, have also expanded the definition of punishment.290
As the Sixth Circuit observed of Michigan’s SORA, the blanket
restrictions on “where people can live, work, and ‘loiter,’ . . . without any
individualized assessment,” and the “time-consuming and cumbersome
in-person reporting,” is punitive and “exceed[s] even a generous
assessment of their statutory effects.”291 The same could be said of
punitive surveillance. As with SORA restrictions, there is “scant evidence
284

Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69 (1963) (footnotes omitted).
See Commonwealth v. Cory, 911 N.E.2d 187, 197 (Mass. 2009).
286
Id. at 196; Doe v. Mass. Parole Bd., 979 N.E.2d 226, 232–33 (Mass. App. Ct. 2012).
287
See Diaz v. State, Dep’t of Corr., 239 P.3d 723, 728 (Alaska 2010).
288
See, e.g., Del. Code Ann. tit. 11, § 4302 (2021); N.J. Stat. Ann. § 2C:43-2 (2021); N.H.
Rev. Stat. Ann. § 651:2 (2021).
289
See 18 U.S.C. § 3561 (1994) (calling probation a “sentence”).
290
See, e.g., Does #1–5 v. Snyder, 834 F.3d 696, 705 (6th Cir. 2016) (holding that
Michigan’s SORA acts as a punishment and therefore cannot be a valid civil regulation);
Evenstad v. City of W. St. Paul, 306 F. Supp. 3d 1086, 1102 (D. Minn. 2018); Doe v. MiamiDade Cnty., 846 F.3d 1180, 1186 (11th Cir. 2017).
291
Does #1-5, 834 F.3d at 705.
285

196

Virginia Law Review

[Vol. 108:147

that such restrictions serve the professed purpose of
keeping . . . communities safe.”292
Some may ask why it is beneficial to classify punitive surveillance as
punishment, as compared to regulation or as a condition of punishment.
Certainly, one implication of classifying punitive surveillance as
punishment is that more people could be sentenced to prison instead of
placed on GPS ankle monitors. There are two responses to this concern.
First, labeling punitive surveillance as punishment is an accurate
reflection of the law and is more reason to closely limit it—through closer
constitutional scrutiny, legislative limits, or abolition, all addressed in
Part IV of this Article. Courts have immense discretion in sentencing, but
legislative responses that limit the use of punitive surveillance could curb
especially abusive practices. Second, the belief that more people will be
incarcerated assumes that punitive surveillance is being used as an
alternative for incarceration, but it is far from clear that people who are
on ankle monitors today would otherwise be incarcerated.293
IV. LIMITS ON PUNITIVE SURVEILLANCE
As detailed in Part III, punitive surveillance reveals significant
incoherencies in punishment jurisprudence that cause this type of carceral
surveillance to escape meaningful constitutional scrutiny. But in the era
of the Decarceration movement, a national reckoning with racial injustice,
and an increased reliance on purported alternatives to incarceration, the
question of unwarranted diminishment of rights has become increasingly
pressing. In this Part, I identify the viability of potential limits on punitive
surveillance.
A. Fortified Eighth Amendment Limits
The Eighth Amendment is the primary and most obvious source of
limitations on punitive surveillance. There are a few reasons why the
Eighth Amendment, as currently interpreted, may be a weak source of
protection, though the doctrinal landscape is shifting.
First, Eighth Amendment jurisprudence is deferential when it comes to
sentencing generally. If a sentence of life without parole for the crime of
drug possession does not violate the Eighth Amendment, it is hard to

292
293

Id.
See supra notes 9–10 and accompanying text.

2022]

Punitive Surveillance

197

make the case that anything less than that is cruel and unusual.294 As other
scholars have pointed out, the Eighth Amendment’s proportionality
limitation, like the reasonableness test discussed above, is circular: any
punishment is proportional so long as it “satisfies an accepted purpose”
of punishment.295
Second, although there is some jurisprudential support for the
proposition that non-prison sentences could violate the Eighth
Amendment, the cases are few and far between. Perhaps not surprisingly,
courts are generally quick to reject Eighth Amendment challenges to
probation and parole conditions.296 For example, banning a defendant
from getting married was found to not violate the Eighth Amendment, 297
as was requiring a defendant to wear a fluorescent pink plastic bracelet
bearing the words “DUI CONVICT.”298 It follows that most Eighth
Amendment (as well as Ex Post Facto Clause) challenges to punitive
surveillance fail.299
But the doctrine is in flux. There are two ways that Eighth Amendment
jurisprudence could be construed to limit punitive surveillance. First, the
fact that more severe punishment, such as the death penalty, has survived
Eighth Amendment challenges, does not provide “a license to the
Government to devise any punishment short of death within the limit of
its imagination.”300 Punishment less than death may still be “cruel and
unusual.” In Trop v. Dulles, the Court held that the use of

294
Harmelin v. Michigan, 501 U.S. 957, 995–96 (1991) (refusing to extend Eighth
Amendment protection to a sentence of life in prison without the possibility of parole).
295
Youngjae Lee, The Constitutional Right Against Excessive Punishment, 91 Va. L. Rev.
677, 683 (2005).
296
See, e.g., United States v. Gementera, 379 F.3d 596, 608–09 (9th Cir. 2004) (rejecting
Eighth Amendment challenge to a shaming condition); Dan M. Kahan, What Do Alternative
Sanctions Mean?, 63 U. Chi. L. Rev. 591, 646 n.226 (1996) (explaining that doctrine reflects
that shaming penalties are not viewed as “cruel and unusual” in regard to the Eighth
Amendment).
297
Johnson v. Rockefeller, 365 F. Supp. 377, 380–81 (S.D.N.Y. 1973).
298
Ballenger v. State, 436 S.E.2d 793, 794–95 (Ga. Ct. App. 1993).
299
See People v. Hallak, 873 N.W.2d 811, 824 (Mich. Ct. App. 2015); Noonan v. Burton,
No. 17-2458, 2018 WL 6584905, at *3 (6th Cir. 2018); United States v. Gardner, 523 F. Supp.
2d 1025, 1031 (N.D. Cal. 2007); United States v. Campbell, 309 F. Supp. 3d 738, 750 (D.S.D.
2018). But see Riley v. N.J. State Parole Bd., 98 A.3d 544, 560 (N.J. 2014) (invaliding life
time GPS monitoring under Ex Post Facto Clause); United States v. Polouizzi, 697 F. Supp.
2d 381, 395 (E.D.N.Y. 2010) (finding that mandatory electronic monitoring under Adam
Walsh Act violates excessive bail clause); United States v. Torres, 566 F. Supp. 2d 591, 602
(W.D. Tex. 2008) (same).
300
Trop v. Dulles, 356 U.S. 86, 99 (1958).

198

Virginia Law Review

[Vol. 108:147

denationalization as punishment is prohibited by the Eighth
Amendment.301 And in Weems v. United States, the Court struck down a
sentence of twelve years of “hard and painful labor,” with “a chain at the
ankle and wrist” and a permanent loss of all civil rights.302 These cases
“make clear that profound impairment of legal personality is
constitutionally significant.”303
Although successful Eighth Amendment challenges to probation are
rare, and at this point somewhat dated, conditions such as forced
castration,304 departing from the United States,305 and a prohibition from
visiting a specific national park306 were found to violate the Eighth
Amendment. As the Court in Trop explained, physical incarceration is not
a prerequisite for an Eighth Amendment challenge:
There may be involved no physical mistreatment, no primitive torture.
There is instead the total destruction of the individual's status in
organized society. It is a form of punishment more primitive than
torture, for it destroys for the individual the political existence that was
centuries in the development. The punishment strips the citizen of his
status in the national and international political community.307

In Weems, the Court noted the dynamic nature of the Eighth
Amendment and the need to reconceptualize punishment “as public
opinion becomes enlightened by a humane justice.”308 The same logic, by
analogy, could be applied to punitive surveillance. Given increasing
concerns about privacy and digital surveillance, perhaps having no
privacy should constitute the sort of “civil death” found to be
unconstitutional in Weems and Trop.
Interestingly, some of these non-carceral Eighth Amendment cases
could have also been decided on First Amendment or Fourth Amendment
grounds, but they were not. At the time these cases were decided, the
Eighth Amendment did the work that the First or Fourth could have done.
And certainly, if decided today, perhaps these punishments would have
301

Id. at 103.
Weems v. United States, 217 U.S. 349, 366, 382 (1910).
303
Chin, supra note 255, at 1821.
304
State v. Brown, 326 S.E.2d 410, 412 (S.C. 1985) (finding castration to be “cruel and
unusual” under South Carolina’s constitution).
305
Dear Wing Jung v. United States, 312 F.2d 73, 76 (9th Cir. 1962).
306
United States v. Armstrong, 186 F.3d 1055, 1064 (8th Cir. 1999).
307
Trop v. Dulles, 356 U.S. 86, 101 (1958).
308
Weems v. United States, 217 U.S. 349, 378 (1910).
302

2022]

Punitive Surveillance

199

been upheld as reasonable conditions of punishment or as a regulatory
measure.
But the Court’s more recent decisions in United States v. Bajakajain
and Timbs v. Indiana also lend support to the proposition that non-carceral
punishment may violate the Eighth Amendment. Although these cases
concerned forfeiture and excessive fines, they stand for the proposition
that some forms of non-carceral punishment violate the Eighth
Amendment.309 In Timbs in particular, the Court focused on the Excessive
Fines Clause as a way of preventing the government from using its
“punishment powers to exploit and undermine individuals . . . to ‘retaliate
or chill’ speech, or otherwise to abuse people.”310 This suggests that states
cannot use punishment in an abusive fashion that burdens basic
constitutional rights.
Of course, what counts as appropriate punishment as compared to
abusive punishment remains somewhat elusive. But the Timbs decision
supports what Judith Resnik has coined, an “anti-ruination principle,”
which is the idea that “state punishment has to preserve (rather than
diminish) people’s capacities to function physically, mentally, and
socially, even as governments may also aim to deter, incapacitate, be
retributivist, rehabilitative, protect institutional safety, and minimize
costs.”311 Perhaps an anti-ruination argument can be made with respect to
punitive surveillance: ruination cannot be the aim of punishment and
punitive surveillance (with its abridgment of fundamental rights) does
precisely that.
Second, punitive surveillance undermines basic notions of dignity, a
hallmark of the Court’s Eighth Amendment jurisprudence.312 The Court
has found that the inability to meet basic human needs is a feature of
punishments that undermine dignity and thus violate the Eighth
Amendment.313 As the empirical research shows, the invasive and
restrictive nature of punitive surveillance creates a “subgroup of
309
Timbs v. Indiana, 139 S. Ct. 682, 698 (2019) (holding that the Eighth Amendment’s
prohibition on excessive fines is an incorporated protection applicable to the States); United
States v. Bajakajian, 524 U.S. 321, 324 (1998) (holding that the full forfeiture of respondent’s
currency violates the Eighth Amendment).
310
Judith Resnik, (Un)Constitutional Punishments: Eighth Amendment Silos, Penological
Purposes, and People’s “Ruin,” 129 Yale L.J.F. 365, 367–68 (2020).
311
Id. at 408.
312
Trop, 356 U.S. at 100 (plurality opinion).
313
See Hope v. Pelzer, 536 U.S. 730, 738 (2002) (holding that chaining a person to a
hitching post undermined dignity in part because of defendant’s inability to use the bathroom).

200

Virginia Law Review

[Vol. 108:147

surveillees who are increasingly divorced from the civic life of their
community, divorced from opportunity for social mobilization, and
divorced from political and educational life and opportunities.”314 As the
Supreme Judicial Court of Massachusetts recently observed, “[w]hen a
judge orders GPS tracking, a ‘modern-day “scarlet letter”’ is physically
tethered to the individual, reminding the public that the person has been
charged with or convicted of a crime.”315 Some people on monitors
describe losing jobs because they had to keep leaving their job to charge
their device or walk outside to get a GPS signal.316 Still other people
report hardships involving not being able to visit loved ones in the
hospital before they passed away,317 not getting permission to attend a
doctor’s appointment,318 not obtaining permission to attend family
reunions,319 or to go to a pharmacy.320 A 76-year-old grandmother in
Baltimore was reincarcerated for “escape” when her GPS ankle monitor
detected her away from her home for a few hours, while she was at a
computer class.321 And a woman in Texas lost her job and was
reincarcerated when the halfway house failed to properly record her
location.322 She returned to prison shortly before giving birth to her
second child.323 Thanks to multi-year efforts of community organizers
and journalists, the dignity harms have been revealed.

314

Arnett, supra note 22, at 675.
Commonwealth v. Norman, 142 N.E.3d 1, 9 (Mass. 2020).
316
Cantú, supra note 131; The Bail Project, After Cash Bail (2020),
https://bailproject.org/wp-content/uploads/2020/02/the_bail_project_policy_
framework_2020.pdf [https://perma.cc/6FZL-L4KZ].
317
Cantú, supra note 131.
318
Kilgore, supra note 33.
319
Cantú, supra note 131.
320
Kilgore, supra note 33.
321
Neena Satija & Justin WM. Moyer, A Grandmother Didn’t Answer Her Phone During a
Class in Baltimore. She Was Sent Back to Prison., Wash. Post (July 1, 2021),
https://www.baltimoresun.com/news/crime/bs-wp-md-cr-federal-prisoners-homeconfinement-20210701-hoqdc5y7pna6jkrevr6pvak2vq-story.html [https://perma.cc/M3A8U25L].
322
Jamie Roth, COVID Allowed Raquel Esquivel and 4,500 Others to Be Released from
Overcrowded Federal Prisons. So Why Is She Back Behind Bars?, Business Insider (Aug. 13,
2021), https://www.businessinsider.com/do-these-4000-federal-inmates-belong-behind-bars2021-8 [https://perma.cc/XYY8-4D4U].
323
Id.
315

2022]

Punitive Surveillance

201

B. Fundamental Rights Limits
It is perhaps intuitive to conclude that if punitive surveillance is
correctly recognized as a form of punishment, it follows that it is always
constitutional, so long as it is not cruel or unusual. But as a new category
of punishment, punitive surveillance raises a critical question: Can the
deprivation of fundamental rights be imposed as direct punishment for a
crime and in lieu of prison? Obviously, a prison sentence involves the
deprivation of liberty, and people in prison generally lose rights that are
“inconsistent with incarceration.” And still other rights, such as the right
to bear arms or serve on a jury, are lost as collateral consequences of a
criminal conviction. Likewise, incarceration and house arrest are also
Fourth Amendment seizures, and punitive surveillance is a Fourth
Amendment search. Courts, however, never explicitly impose the
deprivation of Fourth Amendment rights as direct punishment itself. Is
this because the Fourth Amendment search and seizure is deemed
“reasonable” or because the deprivation of rights can be imposed as direct
punishment itself? In short: is there a “punishment exception” to the
Constitution that exempts criminal punishment from traditional
fundamental rights review?
The answer is not obvious. Justice Stevens, in his dissent in Samson v.
California, in which the majority upheld suspicionless searches of people
on parole, cautioned that the Court has never “sanctioned the use of any
search as a punitive measure.”324 On the other hand, Justice Thomas has
taken the position that states should be afforded deference “to define and
redefine all types of punishment, including imprisonment, to encompass
various types of deprivations”325 and that people convicted of crimes
cannot claim “a general fundamental right to ‘freedom from bodily
restraint.’”326 Lower courts generally assume that punishment is not
subject to heightened constitutional review.327
While an intrepid group of scholars have suggested that prison
sentences, certain extreme probation conditions and collateral
324
Samson v. California, 547 U.S. 843, 864 (2006) (Stevens, J., dissenting) (emphasis
added).
325
Overton v. Bazzetta, 539 U.S. 126, 139 (2003) (Thomas, J., concurring).
326
Foucha v. Louisiana, 504 U.S. 71, 118 (1992) (Thomas, J., dissenting).
327
See, e.g., State v. Oakley, 629 N.W.2d 200, 207 n.23, 208 (Wis. 2001) (refusing to apply
strict scrutiny to an anti-procreation condition of probation); Commonwealth v. Power, 650
N.E.2d 87, 91 (Mass. 1995) (refusing to apply strict scrutiny to a First Amendment challenge
to a probation condition); Allen v. State, 141 A.3d 194, 201 (Md. 2016) (same).

202

Virginia Law Review

[Vol. 108:147

consequences should be subject to additional constitutional limits,
including strict scrutiny, none have yet to influence doctrine.328 This
Article raises, but does not resolve, the question of whether there is a
punishment exception to the Constitution—though the question is an
important one. In related forthcoming work, I address this question in
more depth and the context of other purported alternatives to
incarceration, including diversion programs, restorative justice, and work
release programs, to name a few.329
To be sure, there may be strong constitutional arguments for additional
protections, but it is unlikely that doctrine will change anytime soon. And
as discussed in the next two sections, more rights and legal protections
will not necessarily address the underlying conditions of racialized
carceral control that gave rise to punitive surveillance in the first place.
C. Regulatory Limits
As is true with other forms of law enforcement surveillance, the
answers to the problems with punitive surveillance may lay outside the
Constitution and courts generally.330 Just as there has been a legislative
response, albeit limited, to the unregulated use of police surveillance
technology, there could be parallel legislative responses to the use of
punitive surveillance of people in the criminal legal system. As other
scholars have pointed out, there is currently insufficient “democratic

328
See Jane Bambauer & Andrea Roth, From Damage Caps to Decarceration: Extending
Tort Law Safeguards to Criminal Sentencing, 101 B.U. L. Rev. 1667, 1676 (2021); Salil
Dudani, Note, Unconstitutional Incarceration: Applying Strict Scrutiny to Criminal Sentences,
129 Yale L.J. 2112, 2132 (2020); Alec Karakatsanis, The Punishment Bureaucracy: How to
Think About “Criminal Justice Reform,” 128 Yale L.J.F. 848, 869–70 (2019); Sherry F. Colb,
Freedom from Incarceration: Why Is This Right Different from All Other Rights?, 69 N.Y.U.
L. Rev. 781, 783 (1994); Alec Karakatsanis, Usual Cruelty: The Complicity of Lawyers in the
Criminal Injustice System 59, 78 (2019); Sandra G. Mayson, Collateral Consequences and the
Preventive State, 91 Notre Dame L. Rev. 301, 340 (2015); Phaedra Athena O'Hara Kelly,
Comment, The Ideology of Shame: An Analysis of First Amendment and Eighth Amendment
Challenges to Scarlet Letter Probation Conditions, 77 N.C. L. Rev. 783, 786 (1999); Jaimy M.
Levine, Comment, “Join the Sierra Club!”: Imposition of Ideology as a Condition of
Probation, 142 U. Pa. L. Rev. 1841, 1848 (1994); Alexis Karteron, Family Separation
Conditions, at 3–5 (Dec. 3, 2021) (unpublished manuscript) (on file with author).
329
See Kate Weisburd, Punishment Exceptionalism and the Future of Decarceration 7 (Jan.
24, 2022) (unpublished manuscript) (on file with author).
330
See Barry Friedman & Maria Ponomarenko, Democratic Policing, 90 N.Y.U. L. Rev.
1827, 1834 (2015).

2022]

Punitive Surveillance

203

authorization” of policing,331 and the same can be said of punitive
surveillance.332
Legislation could set important limits in terms of privacy, data sharing,
and reliance on private vendors. Legislation could limit the ability of law
enforcement to access data from the various forms of punitive
surveillance. Legislation could also regulate the type of technology
used—for example, banning ankle monitors with audio functions.
Additionally, legislation could dictate how the technology is used—for
example, allowing for smartphone applications that provide notifications
of court dates but prohibiting more invasive tracking software.
Legislation could also address procedural due process concerns, including
mandated discovery obligations and access to how the technology
functions, including error rates. Finally, legislation could help to regulate
the private surveillance industry. With respect to facial recognition
software, “[w]e’ve relied on industry efforts to self-police and not
embrace such a risky technology, but now those dams are breaking
because there is so much money on the table.”333 The same concerns apply
to the private companies pedaling the various forms of punitive
surveillance.
Recently passed legislation governing police surveillance offers a
useful roadmap. In places like New York City, San Francisco, and
Cambridge, Massachusetts, newly enacted legislation requires some
version of a surveillance technology impact report that includes factors
such as how the surveillance technology operates, the location where it
will be deployed, the impact on marginalized groups, fiscal costs, and
mandated public comment periods before the adoption of any new
surveillance technology.334 Similar impact reports could be required of
punitive surveillance.
Likewise, in the context of prisoners’ rights, Congress passed the
Religious Land Use and Institutionalized Person Act (“RLUIPA”) to curb
infringement on religious practices in prison. Under the Act, prison
regulations cannot substantially burden a prisoner’s religious exercise
331

Id.
Arnett, supra note 22, at 682.
333
Kashmir Hill, The Secretive Company that Might End Privacy as We Know It, N.Y.
Times (Jan. 18, 2020), https://www.nytimes.com/2020/01/18/technology/clearview-privacyfacial-recognition.html [https://perma.cc/X8MS-5LAJ] (quoting Woodrow Hartzog,
Northeastern University professor of law and computer science).
334
See N.Y.C., Admin. Code tit. 14, § 14-188 (2020); S.F., Cal., Admin. Code § 19B.2
(2019); Cambridge, Mass., Code of Ordinances Ch. 2.128.010 (2018).
332

204

Virginia Law Review

[Vol. 108:147

unless the burden is “in furtherance of a compelling governmental
interest” and is “the least restrictive means of furthering that compelling
governmental interest.”335 Legislation focused on the privacy rights of
people under court control could likewise subject punitive surveillance to
some form of heightened scrutiny.336
Of course, regulating surveillance need not only come from lawmakers.
Prosecutors can also shift policies and practices. Given the surge in
prosecutors elected on criminal justice reform platforms, there are
increasing opportunities for policy reform initiated by local prosecutors.
Although many recently elected prosecutors have taken firm stances on
limiting or outright eliminating money bail,337 for example, none have
enacted policies aimed at limiting the use of punitive surveillance as an
alternative to bail.
To date, community organizers and activists have led efforts to limit
the use of punitive surveillance. For example, in 2020, activists convinced
the Illinois Prisoner Review Board (the state equivalent of the parole
board) to allow people on monitors (and thus also on house arrest) to have
twelve hours per day of movement, seven days a week. This was a victory
for people who previously were often denied permission to leave the
house, or were only granted permission occasionally.338 The Illinois
Legislature also recently passed bail reform legislation that prevents
electronic monitoring from being used in non-detainable cases and allows
its use only if “no less restrictive condition of release . . . would
reasonably ensure the appearance of the defendant for later hearings or
protect an identifiable person . . . from imminent threat of serious
physical harm.”339 Similarly, two advocacy organizations, MediaJustice
and the Challenging E-Carceration project recently published ten
335

42 U.S.C. § 2000cc(a)(1)(A), (B) (2000).
See David M. Shapiro, Lenient in Theory, Dumb in Fact: Prison, Speech, and Scrutiny,
84 Geo. Wash. L. Rev. 972, 1024–25 (2016) (arguing that the RLUIPA standard governs
speech clause claims raised by people in prison).
337
See Colin Doyle, Chesa Boudin’s New Bail Policy Is Nation’s Most Progressive. It Also
Reveals Persistence of Tough-on-Crime Norms, Appeal (Jan. 30, 2020),
https://theappeal.org/politicalreport/chesa-boudin-cash-bail-predictions/
[https://perma.cc/776H-4JSM].
338
Kira Lerner, Illinois Loosened Ankle-Monitor Restrictions, but Advocates Say It’s Too
Soon to Celebrate, Appeal (Oct. 18, 2019), https://theappeal.org/illinois-loosened-anklemonitor-restrictions-but-advocates-say-its-too-soon-to-celebrate/
[https://perma.cc/ND37RF3C].
339
H.B. 3653, 101st Gen. Assemb., Reg. Sess. § 110-5(g) (Ill. 2021), https://www.ilga.
gov/legislation/101/HB/10100HB3653sam002.htm [https://perma.cc/RWC2-CD44].
336

2022]

Punitive Surveillance

205

arguments against the use of electronic monitoring, as well as other
resources for policy reform.340 Activists in California successfully lobbied
for the elimination of user fees for GPS ankle monitors,341 and Critical
Resistance SF has mounted a robust campaign to stop the expanded use
of GPS monitors in San Francisco.342
D. Beyond Limits: Punitive Surveillance Abolition
As some scholars, commentators, and organizers warn, reform presents
significant risks.343 Rather than shrink the footprint of the criminal legal
system, reform efforts cause new harms, such as legitimating policing
through “surveillance bureaucracy,” thereby undermining efforts to
defund and abolish police.344 Reform efforts often result in simply
tinkering around the edges but leaving in place the entrenched problem of
institutionalized racism that gave rise to both mass incarceration and
punitive surveillance.345
Constitutional and regulatory limits may do little to shift the larger
carceral paradigm, as “a digital cell is still a form of high-tech social
control.”346 Rather, as abolition scholar Angela Davis has urged, the
“most difficult and urgent challenge today is that of creatively exploring
340
MediaJustice, No More Shackles: Ten Arguments Against Pretrial Electronic Monitoring
(2019); James Kilgore, Electronic Monitoring Is NOT an Alternative to Incarceration,
Challenging E-Carceration (June 18, 2017), https://www.challengingecarceration.org/
2017/06/18/why-electronic-monitoring/ [https://perma.cc/T7F5-7Z8L].
341
Andrew Sheeler, New California Law Strikes Criminal Court Fees Charged by Sheriffs,
Police, Sacramento Bee (Sept. 21, 2020), https://www.sacbee.com/news/politicsgovernment/capitol-alert/article245898415.html; A.B. 1869, 2019–2020 Leg., Reg. Sess.
(Cal. 2020) (eliminating fees for electronic monitoring).
342
See Organizational Letter to Close 850 Bryant, No New SF Jail Coalition (July 23, 2019),
https://nonewsfjail.org/orgletter2019/#:~:text=July%2023%2C%202019%20%7C%20Over
%2065,a%20closure%20of%20850%20Bryant.&text=In%202017%2C%20City%20Admini
strator%20Naomi,the%20jail%20has%20been%20implemented
[https://perma.cc/G46K6XNJ]; Who We Are, No New SF Jail Coalition, https://nonewsfjail.org/about/
[https://perma.cc/D77P-5JMP] (last visited Oct. 29, 2021).
343
Schenwar & Law, supra note 10, at 9; Arnett, supra note 22, at 682; Fuck the Police,
Trust the People: Surveillance Bureaucracy Expands the Stalker State, Stop LAPD Spying
Coal. (June 24, 2020), https://stoplapdspying.org/surveillance-bureaucracy-expands-thestalker-state/ [https://perma.cc/WG55-9ETJ].
344
Stop LAPD Spying Coal., supra note 343.
345
See Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. 405,
440–41 (2018); Dorothy E. Roberts, Democratizing Criminal Law as an Abolitionist Project,
111 Nw. U. L. Rev. 1597, 1604 (2017); Jessica M. Eaglin, Algorithms as Racial Ideology in
Law 11 (Jan. 24, 2022) (unpublished manuscript) (on file with author).
346
Benjamin, supra note 13, at 166.

206

Virginia Law Review

[Vol. 108:147

new terrains of justice, where the prison no longer serves as our major
anchor.”347 Even the most well-intended reform may do nothing to change
the basic nature of punitive surveillance, which is, at its core, a highly
racialized tool of carceral control.
One solution is for surveillance-abolition goals to guide collective
thinking about the role and future of punitive surveillance. In particular,
eliminating reliance on punitive surveillance as a “primary means of
addressing what are essentially social, economic, and political
problems.”348 Because punitive surveillance is often viewed as a
benevolent alternative to incarceration, however, reform risks further
solidifying its perceived legitimacy, thereby undermining abolitionist
goals.
Using abolition as a baseline also forces an important inquiry into the
net widening impact of punitive surveillance. Rather than assume that
punitive surveillance is being used as an alternative to incarceration, an
abolition lens focuses not on who would otherwise be incarcerated, but
rather, who should be incarcerated. So long as punitive surveillance is
relied on—and justified as an alternative to incarceration—the risk of
people being on a monitor who should not be on a monitor or incarcerated
remains high. The abolitionist critique also reveals that the “alternatives”
narrative perpetuates a “false binary between incarceration or surveillance
and ignores a third option: unconditional freedom.”349 This Article does
not resolve the tension between reform and abolition but brings the
question of surveillance abolition to the surface.
CONCLUSION
New forms of punishment are booming: halfway houses, drug
treatment centers, community supervision, drug courts, programs aimed
at sex workers, work camps, and restitution centers, to name a few.350
347

Angela Y. Davis, Are Prisons Obsolete? 21 (2003).
Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. Rev. 1156,
1172 (2015) (discussing the goals of abolition generally).
349
James Kilgore, Emmett Sanders & Kate Weisburd, The Case Against E-Carceration,
Inquest
(July
30,
2021),
https://inquest.org/the-case-against-e-carceration/
[https://perma.cc/98K4-G6KE].
350
See Schenwar & Law, supra note 10, at 8, 18–19, 57, 94–97; Laura I Appleman, The
Treatment-Industrial Complex: Alternative Corrections, Private Prison Companies, and
Criminal Justice Debt, 55 Harv. C.R.-C.L. L. Rev. 1, 12–23 (2020); Joshua Holland, Private
Prison Companies Are Embracing Alternatives to Incarceration, Nation (Aug. 23, 2016),
https://www.thenation.com/article/archive/private-prison-companies-are-embracing348

2022]

Punitive Surveillance

207

These additional forms of restraint and surveillance not only expand the
footprint of the carceral state, they also evade close judicial scrutiny. In
the shadows of the criminal legal system, people’s fundamental rights are
stripped away with no meaningful limitation or oversight. This Article
makes the case that punitive surveillance should be recognized for its
carceral nature and limited accordingly.
APPENDIX: RECORDS IN STUDY351

THE RECORDS IN STUDY: TYPE OF RECORD
N = 247

Terms and
Conditions for
Electronic
Monitoring,
22.67%

Internal
Agency
Policies,
21.46%

Contracts
with private
vendors,
29.55%

General
Conditions of
Supervision,
26.32%

alternatives-to-incarceration/ [https://perma.cc/7T84-QG74]; Anna Wolfe & Michelle Liu,
Think Debtors Prisons Are a Thing of the Past? Not in Mississippi, Marshall Project (Jan. 9,
2020), https://www.themarshallproject.org/2020/01/09/think-debtors-prisons-are-a-thing-ofthe-past-not-in-mississippi [https://perma.cc/Y7GU-CGEA].
351
Electronic Prisons, supra note 4, at 29.

208

Virginia Law Review

[Vol. 108:147

THE RECORDS IN STUDY: AGENCY TYPE
N = 247
Probation and
Pretrial,
5.67%

Parole,
27.13%
Probation,
27.13%

Parole and
Pretrial,
0.40%

Pretrial,
30.77%

Probation and
Parole, 7.69%
Probation,
Parole, and
Pretrial,
1.21%

2022]

Punitive Surveillance

209

Records Relied on in Report
State

Name of Agency

Alabama

Bureau of
Pardons and
Paroles
Jefferson County
Sheriff’s Office

Alabama

Alaska

Arizona

Department of
Corrections
Department of
Corrections,
Rehabilitation &
Reentry

What does
the agency
oversee?
Probation
and Parole
Pretrial
Pretrial,
Probation
and Parole

Parole

Arizona

Judicial Branch,
Adult Probation
Services
Mohave County
Probation
Department

Arkansas

Department of
Corrections,
Division of
Community
Corrections

Probation
and Parole

California

Los Angeles
County Probation
Department

Probation

California

Orange County
Probation
Department

Probation

Arizona

Pretrial and
Probation
Pretrial

Records Collected

General Conditions of
Supervision
General Conditions of
Supervision
Contract, General
Conditions of
Supervision, Terms
and Conditions of
Electronic Monitoring
General Conditions of
Supervision
General Conditions of
Supervision, Terms
and Conditions of
Electronic Monitoring
General Conditions of
Supervision
Contract, General
Conditions of
Supervision, Internal
Policies Terms and
Conditions of
Electronic Monitoring
Contract, Internal
Policies, Terms and
Conditions of
Electronic Monitoring
Contract, General
Conditions of
Supervision, Internal
Policies

210
State

California

California
California

Virginia Law Review
Name of Agency

Sacramento
County Sheriff’s
Department
San Diego
County Sheriff’s
Department
San Francisco
Sheriff’s
Department

What does
the agency
oversee?

Pretrial and
Probation

Pretrial
Pretrial

Colorado

Denver Adult
Probation
Department
Denver
Department of
Public Safety

Colorado

Department of
Corrections

Parole

Connecticut

Department of
Correction

Parole

Connecticut

Judicial Branch,
Court Support
Services Division

Probation

Colorado

Probation
Pretrial

[Vol. 108:147
Records Collected
Contract, General
Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring
Contract, Internal
Policies, Terms and
Conditions of
Electronic Monitoring
Contract, Terms and
Conditions of
Electronic Monitoring
Contract, General
Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring
Contract, General
Conditions of
Supervision
Contract, General
Conditions of
Supervision, Internal
Policies
Terms and Conditions
of Electronic
Monitoring
Contract, General
Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring

2022]
State

Punitive Surveillance
Name of Agency

What does
the agency
oversee?

District of
Columbia

Department of
Correction,
Bureau of
Community
Corrections
Court Services
and Offender
Supervision
Agency for the
District of
Columbia

District of
Columbia

Pretrial Services
Agency

Pretrial

Florida

Broward Sheriff’s
Office, Pretrial
Services Division

Pretrial

Delaware

Florida

Georgia
Hawaii

Department of
Corrections and
Rehabilitation
Miami-Dade
Corrections and
Rehabilitation
Department
Department of
Community
Supervision
Department of
Public Safety

Pretrial,
Probation
and Parole

Probation
and Parole

Probation
Pretrial and
Probation

Probation
and Parole
Parole

211
Records Collected
Contract, General
Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring

Contract, General
Conditions of
Supervision
Contract Terms and
Conditions of
Electronic Monitoring
Contract, General
Conditions of
Supervision, Internal
Policies
Contract, General
Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring
Contract, General
Conditions of
Supervision
General Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring
Contract, Internal
Policies

212
State

Virginia Law Review
Name of Agency

What does
the agency
oversee?

Idaho

Ada County
Sheriff’s Office
Canyon County
Misdemeanor
Probation
Department

Idaho

Canyon County
Sheriff’s Office

Pretrial

Idaho

Department of
Correction

Probation
and Parole

Idaho

Illinois

Illinois
Illinois

Circuit Court of
Cook County
Adult Probation
Department
Cook County
Sheriff’s Office
and Adult
Probation
Department
Cook County
Government:
Cook County
Adult and
Juvenile
Probation
Department of
Corrections

Probation
and Pretrial

[Vol. 108:147
Records Collected
Internal Policies,
General Conditions of
Supervision, Terms
and Conditions of
Electronic Monitoring

Probation

General Conditions of
Supervision
Contract, General
Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring
Contract, Internal
Policies, Terms and
Conditions of
Electronic Monitoring
General Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring

Probation
and Pretrial

Contract, Terms and
Conditions of
Electronic Monitoring

Probation

Pretrial
Parole

Contract
Contract, Internal
Policies

2022]
State

Punitive Surveillance
Name of Agency

Illinois

Lake County
Sheriff’s
Department
Community
Based
Corrections
Center,
Electronic
Monitoring
Program
Prisoner Review
Board

Indiana

Department of
Corrections,
Division of
Parole Services

Illinois

Indiana
Iowa

Iowa

Marion County
Community
Corrections
Department of
Administrative
Services
Department of
Corrections
Fifth Judicial
District
Department of
Correctional
Services

What does
the agency
oversee?

Pretrial and
Probation
Parole

Parole

Probation
and Pretrial
Pretrial

213
Records Collected

Contract, Terms and
Conditions of
Electronic Monitoring
General Conditions of
Supervision
Contract, General
Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring
Contract, General
Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring

Pretrial,
Probation
and Parole

Contract
Internal Policies,
Terms and Conditions
of Electronic
Monitoring

Probation

General Conditions of
Supervision

214

Virginia Law Review
What does
the agency
oversee?

State

Name of Agency

Kansas

Department of
Corrections,
Community and
Field Services
Division

Parole

Kansas

Johnson County
Department of
Corrections

Probation
and Pretrial

Kansas

Sedgwick County
Department of
Corrections

Probation
and Pretrial

Kentucky
Kentucky

Kentucky

Kentucky
Kentucky

Department of
Corrections
Jefferson County
Pretrial Services
Lexington
Division of
Community
Corrections
Louisville
Metropolitan
Department of
Corrections
LouisvilleJefferson County
Pretrial Services

Probation
and Parole
Pretrial
Probation
and Pretrial

[Vol. 108:147
Records Collected
Contract, General
Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring
Contract, General
Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring
Contract, General
Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring
Contract, General
Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring
General Conditions of
Supervision

Pretrial

Contract, Internal
Policies
Internal Policies,
Terms and Conditions
of Electronic
Monitoring

Pretrial

Contract

2022]
State

Punitive Surveillance
Name of Agency

What does
the agency
oversee?

215
Records Collected

Maryland

Cumberland
County Pretrial
Services
Department of
Corrections
Pretrial Services,
Inc.
Department of
Public Safety and
Correctional
Services
Prince George's
County
Department of
Corrections

Massachusetts

Parole Board

Parole

Michigan

Department of
Corrections

Probation
and Parole

Oakland County
Community
Corrections
Division
Oakland County
Compliance
Office

Pretrial

General Conditions of
Supervision, Internal
Policies
Contract, Internal
Policies, Terms and
Conditions of
Electronic Monitoring
General Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring
Contract, General
Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring
General Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring

Pretrial

Contract

Maine
Maine
Maine

Maryland

Michigan
Michigan

Pretrial
Probation

Contract
General Conditions of
Supervision

Pretrial

Internal Policies

Parole
Probation
and Pretrial

216
State

Minnesota

Virginia Law Review
Name of Agency

Ramsey County
Correctional
Facility

What does
the agency
oversee?

Pretrial
Probation

Contract

Pretrial

Contract
Contract, General
Conditions of
Supervision

Probation

Probation
and Parole
Probation
and Parole

Nevada
New
Hampshire

Department of
Corrections

Probation
and Parole

Missouri
Missouri
Nebraska
Nebraska
Nebraska

Records Collected
Contract, General
Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring
Contract, General
Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring
General Conditions of
Supervision
Terms and Conditions
of Electronic
Monitoring

Department of
Corrections
Department of
Corrections
St. Louis County
Department of
Justice Services
Department of
Correctional
Services
Douglas County
Department of
Corrections
Lancaster County
Community
Corrections
Department of
Public Safety,
Division of
Parole and
Probation

Mississippi

[Vol. 108:147

Pretrial

Probation
and Parole

Contract, General
Conditions of
Supervision
Internal Policies,
Terms and Conditions
of Electronic
Monitoring

2022]
State

Punitive Surveillance
Name of Agency

What does
the agency
oversee?

Parole

Probation
and Parole

General Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring

Judiciary

Pretrial

New Jersey

State Parole
Board

Parole

New Mexico

Corrections
Department

Pretrial,
Probation
and Parole

North Carolina

Ohio

Cuyahoga County
Probation
Department

New York

North Carolina
North Carolina

Records Collected
Terms and Conditions
of Electronic
Monitoring
Contract, General
Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring
Contract, General
Conditions of
Supervision, Terms
and Conditions of
Electronic Monitoring
Contract, General
Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring

New Jersey

State Department
of Corrections
and Community
Supervision
Department of
Public Safety,
Division of Adult
Correction,
Community
Corrections
Department of
Public Safety
Rockingham
County Courts

217

Probation
Pretrial

Probation

Contract
General Conditions of
Supervision
General Conditions of
Supervision, Terms
and Conditions of
Electronic Monitoring

218

Virginia Law Review
What does
the agency
oversee?

State

Name of Agency

Ohio

Department of
Rehabilitation
and Correction

Parole

Oklahoma

Department of
Corrections,
Probation and
Parole Services

Probation
and Parole

Oklahoma
Oregon

Oregon

Pennsylvania
Pennsylvania
South Dakota

Tulsa County
Court Services
Department of
Corrections
Multnomah
County
Department of
Community
Justice, Adult
Services Division

Board of Parole
and Probation
Luzerne County
Division of
Corrections
Department of
Corrections

[Vol. 108:147
Records Collected

Pretrial

Contract, General
Conditions of
Supervision, Internal
Policies
Contract, General
Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring
Contract, General
Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring

Parole

Contract

Probation

Probation
and Parole
Probation
Parole

General Conditions of
Supervision
Contract, General
Conditions of
Supervision, Terms
and Conditions of
Electronic Monitoring
Contract
General Conditions of
Supervision

2022]
State

Punitive Surveillance
Name of Agency

Texas

Minnehaha
County Sheriff’s
Office, Jail
Division
Unified Judicial
System
Dallas County
Pre-Trial Services
Department of
Criminal Justice,
Parole Division

Utah

County Sheriff's
Office

South Dakota
South Dakota
Texas

Utah
Utah
Utah

Virginia

Department of
Corrections
Department of
Corrections
Salt Lake County
Criminal Justice
Services

Department of
Corrections
Fairfax County
Sheriff's Office
Alternative
Incarceration
Branch

219

What does
the agency
oversee?

Records Collected

Pretrial
Probation

Terms and Conditions
of Electronic
Monitoring
General Conditions of
Supervision

Pretrial

Internal Policies

Parole

Internal Policies
Internal Policies,
Terms and Conditions
of Electronic
Monitoring
Contract, Internal
Policies, Terms and
Conditions of
Electronic Monitoring
General Conditions of
Supervision

Pretrial
Probation
and Parole
Probation
and Parole

Parole

General Conditions of
Supervision
Contract, General
Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring

Pretrial and
Probation

Contract, Internal
Policies, Terms and
Conditions of
Electronic Monitoring

Pretrial

220
State

Virginia

Washington
West Virginia

Virginia Law Review
Name of Agency
Richmond
Department of
Justice Services
King County
Department of
Adult & Juvenile
Detention
Berkeley County
Community
Corrections

What does
the agency
oversee?
Probation
and Pretrial

Pretrial
Probation
and Pretrial

West Virginia

Division of
Corrections and
Rehabilitation,
Parole Services
Kanawha County
Sheriff’s Office,
Home
Confinement
Division

Wisconsin

Dane County
Pretrial Services

Pretrial

Wisconsin

Department of
Corrections

Pretrial,
Probation
and Parole

Wisconsin

JusticePoint
(Milwaukee
County)

Pretrial

West Virginia

Parole

Pretrial

[Vol. 108:147
Records Collected
General Conditions of
Supervision, Internal
Policies
Terms and Conditions
of Electronic
Monitoring
Terms and Conditions
of Electronic
Monitoring
Contract, General
Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring
Terms and Conditions
of Electronic
Monitoring
Contract, General
Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring
Contract, General
Conditions of
Supervision, Internal
Policies
General Conditions of
Supervision, Internal
Policies, Terms and
Conditions of
Electronic Monitoring

2022]

Punitive Surveillance

State

Name of Agency

Wyoming

Department of
Corrections

What does
the agency
oversee?

Parole

221
Records Collected
Contract, General
Conditions of
Supervision

The Habeas Citebook Ineffective Counsel Side