GW Law School Public Law and Legal Theory Paper No. 2023-25
GW Legal Studies Research Paper No. 2023-25

Rights Violations as Punishment
Kate Weisburd

This paper can be downloaded free of charge from the Social Science Research
Network: https://ssrn.com/abstract=4424954

Electronic copy available at: https://ssrn.com/abstract=4424954

Rights Violations as Punishment
Kate Weisburd *
Is punishment generally exempt from the Constitution? That is,
can the deprivation of basic constitutional rights—such as the rights
to marry, bear children, worship, consult a lawyer, and protest—be
imposed as direct punishment for a crime and in lieu of prison, so long
as such intrusions are not “cruel and unusual” under the Eighth
Amendment? On one hand, such state intrusion on fundamental rights
would seem unconstitutional. On the other hand, such intrusions are
often less harsh than the restriction of rights inherent in prison. If a
judge can sentence someone to life in prison, how can a judge not also
have the power to strip someone of the right to marry, or speak, as
direct punishment? Surprisingly, as this Article reveals, existing law
offers no coherent explanation as to why rights-violating punishments
somehow escape traditional constitutional scrutiny. Yet the question is
critical as courts—often in the name of decarceration—increasingly
impose non-carceral punishments that deprive people of constitutional
rights.

DOI: https://doi.org/10.15779/Z381R6N216
Copyright © 2023 Kate Weisburd.
* Associate Professor of Law, George Washington School of Law. For helpful feedback and
conversations, I thank: Michael B. Abramowicz, Ty Alper, Laura Appleman, Chaz Arnett, Jeremy
Bearer-Friend, Yvette Butler, I. Bennett Capers, Danielle K. Citron, Thomas Colby, Erin Collins, Beth
Colgan, Fiona Doherty, Sharon Dolovich, Jessica Eaglin, Fanna Gamal, Brandon Garrett, Daniel
Harawa, Eisha Jain, Vida Johnson, Dmitry Karshtedt, James Kilgore, Amy Kimpel, Guha
Krishnamurthi, Cynthia Lee, Benjamin Levin, Cortney Lollar, Dayna Bowen Matthew, Allegra
McLeod, Jamelia Morgan, Saira Mohamed, Erin Murphy, Ngozi Okidegbe, Lucious T. Outlaw III,
Daniel Richman, Alice Ristroph, Andrea Roth, Emmett Sanders, Margo Schlanger. David M. Shapiro,
Jacob Schuman, Jonathan Simon, Jocelyn Simonson, Maneka Sinha, Abbe Smith, Peter Smith, Daniel
Solove, Ji Seon Song, Vincent Southerland, Jessica Steinberg, I. India Thusi, Charles Tyler, Lisa
Washington, Charles Weisselberg, and participants at the 2021 Decarceration Roundtable, 2021 Crim
Fest, 2022 Michigan Law Junior Scholars Conference, and faculty workshops at Penn State Law School
and Washington University in St. Louis School of Law. I am especially indebted to my terrific research
assistants: Joseph Ambrose, Daniella J. Cho, Jacob Hochberger, Briyana Louis, Rosemary Martin,
Molly Muoio and Angela Seagraves. I am likewise extremely grateful to the student editors of The
California Law Review for their excellent editing.

101

Electronic copy available at: https://ssrn.com/abstract=4424954

102

CALIFORNIA LAW REVIEW

[Vol. 111:101

This Article argues that “punishment exemption”—the
assumption that criminal punishment is exempt from traditional
constitutional scrutiny—has no legal basis. Drawing on original
empirical research, this Article first exposes a maze of modern noncarceral punishments that infringe on constitutional rights, justified by
nothing more than the assertion that they are punishment and
therefore permissible. If both legal and limitless, these rightsrestricting punishments erase basic constitutional protections for
people on court supervision and risk re-entrenching the very racial,
gender, and economic inequities that decarceration efforts aim to
address. This Article then explains, based on the Constitution’s plain
language and well-established constitutional principles, that
punishment is not exempt from the Constitution. Rather, all
punishment, including imprisonment, is state action subject to
traditional constitutional scrutiny. Properly understood as such, many
punishments—both
carceral
and
non-carceral—may
be
unconstitutional.
Introduction ............................................................................................. 103
I. A Portrait of Rights Violations As Punishment................................... 109
A. The Rise of Non-Carceral Punishment ................................ 109
1. Probation, Parole, and Supervised Release.................... 111
2. Halfway Houses and Work Centers ............................... 112
3. Problem-Solving Courts and Treatment Programs........ 113
4. Electronic Monitoring and Other Forms of Technological
Surveillance .................................................................... 114
B. The Scope of Rights Violations as Punishment ................... 116
1. First Amendment............................................................ 116
2. Fourth Amendment ........................................................ 118
3. Fifth and Sixth Amendments ......................................... 120
4. Substantive Due Process ................................................ 121
C. Cumulative Impact of Rights Violations ............................. 124
D. Structural Features that Facilitate Punishment Exemption.. 126
1. Barriers to Legal Challenges.......................................... 126
2. Delegation to Third Parties ............................................ 127
3. Lack of Regulatory Protections ..................................... 128
II. The Case Against Punishment Exemption ......................................... 129
A. No General “Punishment Exception” to the Constitution ... 130
B. The “Right to Have Rights” ................................................. 133
C. Prohibition on Punishments that Ruin People & Undermine
Dignity .................................................................................. 139
D. Reasons to Reject the “Reasonably Related” Standard ....... 141
1. Limitless Limit ............................................................... 142
2. Legally Unsound ............................................................ 143

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

103

3. Inapplicable to Non-Carceral Punishment ..................... 144
E. Courts Concede the Need for Constitutional Scrutiny ........ 145
III. Answering Anticipated Objections ................................................... 147
A. Prison Is Worse Yet Perfectly Legal.................................... 147
B. But For Non-Carceral Punishments, People Would Be
Imprisoned ............................................................................ 148
C. Consent Nullifies Need for Constitutional Scrutiny ............ 148
D. Erasure of Rights is Not Punishment ................................... 150
E. The Eighth Amendment Occupies the Field ........................ 152
IV. Implications of Eliminating Punishment Exemption........................ 153
A. New Limits on Non-Carceral Punishment ........................... 154
B. New Limits on All Punishment............................................ 157
C. New Lessons for Decarceration ........................................... 160
Conclusion ............................................................................................... 163

INTRODUCTION
To what extent can a judge deprive someone of fundamental constitutional
rights as punishment for a crime and in lieu of prison? The question is not merely
theoretical. For the 4.5 million people who are subject to criminal court control,
but not incarcerated, criminal punishments routinely restrict their rights to travel,
marry, bear children, worship, socialize, and protest. 1 People under criminal
court supervision are frequently required to provide DNA samples to law
enforcement, use devices that measure drug and alcohol use, or wear GPS and
microphone-equipped ankle monitors that record and track their precise location
24/7, sometimes for months or years at a time. 2 And as part of non-carceral
punishments, courts commonly order people to participate in religious drug
treatment programs like Alcoholics Anonymous (“AA”) or others that may
require individuals to sign self-incriminating acceptance of responsibility
statements.3
These punishments, and others like them, highlight two interrelated and
often conflicting phenomena in criminal law: increased reliance on “alternative”
non-carceral punishments, and the increasing degree to which these punishments
strip people of constitutional rights. Although the deprivation of rights has
always featured prominently in all forms of punishment, advances in surveillance
technology, along with the influence of private “community corrections”
entrepreneurs, has created an even more invasive web of rights-restricting non-

1. See infra Part I.
2. See infra Part I; Kate Weisburd, Punitive Surveillance, 108 VA. L. REV.147, 147–48 (2022).
3. See infra Part I. See also 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
(2020).

Electronic copy available at: https://ssrn.com/abstract=4424954

104

CALIFORNIA LAW REVIEW

[Vol. 111:101

carceral punishments.4 While these punishments are often imposed in the name
of decarceration, they instead risk reinforcing what Professors Amanda
Alexander and Reuben Jonathan Miller call “carceral citizenship,” 5 a status that
legitimates the legal exclusion of historically subordinated groups and reinforces
social-legal hierarchies based on race, class, disability, and gender.
This expanded landscape of non-carceral punishments surfaces a lurking
but critical question: Why do rights-violating punishments escape traditional
constitutional review that applies outside of the punishment context?6 On one
hand, the “right to have rights” is “not a license that expires upon misbehavior,”7
and non-carceral punishments that restrict rights seem like classic state actions
that are unconstitutional “unless . . . narrowly tailored to [meet] a compelling
state interest.” 8 On the other hand, the rights-deprivations inherent in noncarceral punishments are often less harsh than the deprivations inherent in prison.
If a judge can sentence someone to life in prison, how can a judge not also have
the power to strip someone of the right to marry, worship, or speak as direct
punishment?
Punishment jurisprudence offers clues but no clear answer. A prison
sentence, after all, involves the obvious deprivation of liberty, and people in
prison generally lose rights that are “inconsistent with” incarceration. 9 Likewise,
courts uphold exploitative prison labor and felony disenfranchisement as legal
punishments explicitly permitted by the Thirteenth and Fourteenth
Amendments. 10 And the deprivation of still other rights, such as the right to bear
arms or serve on a jury, are justified as collateral consequences of a criminal
conviction.11 But are non-carceral punishments that restrict religious practices or
intimate relationships, for example, justified merely because they are
punishment, or rather, because they pass First Amendment and substantive due
process scrutiny? Likewise, is tracking a person’s location 24/7 through a GPS
ankle monitor permissible because it is punishment, or because it is considered
a “reasonable” Fourth Amendment search?

4. See infra Part I.
5. Reuben J. Miller & Amanda Alexander, The Price of Carceral Citizenship: Punishment,
Surveillance, and Social Welfare Policy in an Age of Carceral Expansion, 21 MICH. J. RACE & L. 291,
294-97 (2016).
6. By “traditional,” I mean the type of constitutional scrutiny or review that would apply but
for the rights-restriction being imposed as punishment.
7. Trop v. Dulles, 356 U.S. 86, 92, 102 (1958).
8. Reno v. Flores, 507 U.S. 292, 302 (1993).
9. Pell v. Procunier, 417 U.S. 817, 822 (1974).
10. Richardson v. Ramirez, 418 U.S. 24, 56 (1974) (upholding permanent disenfranchisement
of people convicted of crimes); Draper v. Rhay, 315 F.2d 193, 197 (9th Cir. 1963) (holding that prison
labor does not violate the Thirteenth Amendment).
11. See MARGARET COLGATE LOVE, JENNY ROBERTS & WAYNE A. LOGAN, COLLATERAL
CONSEQUENCES OF CRIMINAL CONVICTION: LAW, POLICY & PRACTICE § 2 (ed. 2021).

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

105

In short, is there something special about punishment that justifies what I
refer to as punishment exemption,” 12 the assumption that non-carceral
punishment is exempt from traditional constitutional scrutiny? The question of
punishment exemption is not limited to non-carceral punishments, though the
problems are most stark in that context. People in prison—like people subject to
non-carceral punishments—also loose rights, though there is a more robust,
albeit often inadequate, legal regime to evaluate such deprivations. 13 No such
legal framework exists with respect to non-carceral punishments. This Article
engages these murky questions and offers a simple, if unexpected, answer:
punishment is not exempt from the Constitution. All punishment, including
imprisonment, is state action subject to traditional constitutional review. 14
Properly understood as such, many non-carceral punishments—along with some
prison sentences—are unconstitutional, even if not cruel and unusual. How
punishment exemption has nonetheless flourished, and its implications, is the
focus of this Article.
Certainly, part of the puzzle is courts’ failure to recognize, much less
appreciate, the rights-stripping nature of non-carceral punishments. Because
non-carceral punishments are generally viewed as “better” than prison—and they
often are—the analysis of their impact on fundamental rights often stops there.
But better-than-prison is a low threshold and fails to resolve the question of what
constitutional scrutiny is due, much less whether these punishments are sound or
humane policies.
Drawing on my ongoing and original empirical research on the operation
of non-carceral punishments, this Article exposes the web of rights-violating
12. This Article’s invocation of the term “punishment exemption” is inspired by, and part of, a
burgeoning literature focused on exceptionalism in criminal law and procedure. While the thesis of paper
makes separate (but related) points, I view this wave of scholarship as a healthy sign of the decline of
“siloing” criminal law and greater inquiries into what makes criminal law distinct. See Benjamin Levin,
Criminal Law Exceptionalism,108 Va. L. Rev. 1381, 1434 (2023); Aaron Littman, Jails, Sheriffs, and
Carceral Policymaking, 74 VAND. L. REV. 861, 930–32 (2021); Alice Ristroph, The Wages of Criminal
Law Exceptionalism, CRIM. L. AND PHIL. (2021); Salil Dudani, Note, Unconstitutional Incarceration:
Applying Strict Scrutiny to Criminal Sentences, 129 YALE L.J. 2112, 2132 (2020); Justin Driver &
Emma Kaufman, The Incoherence of Prison Law, 135 HARV. L. REV. 515, 570 (2021); Alice Ristroph,
An Intellectual History of Mass Incarceration, 60 B.C. L. Rev. 1949, 1953-54 (2019); Carol S. Steiker,
Capital Punishment and Contingency, 125 HARV. L. REV. 760, 764 (2012) (reviewing DAVID
GARLAND, PECULIAR INSTITUTION: AMERICA’S DEATH PENALTY IN AN AGE OF ABOLITION (2010));
Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 STAN. L. REV. 989, 1012 (2006).
13. See infra Part II D.
14. A handful of scholars argue that prison sentences or probation detention should be subject
to additional constitutional limits, including strict scrutiny, but none address the unique rightsrestrictions inherent in non-carceral punishments. See Driver & Kaufman, supra note 12, at 576; Jane
Bambauer & Andrea Roth, From Damage Caps to Decarceration: Extending Tort Law Safeguards to
Criminal Sentencing, 101 B.U. L. Rev. 1667, 1676 (2021); Dudani, supra note 12, at 2132; Sherry F.
Colb, Freedom from Incarceration: Why Is This Right Different from All Other Rights?, 69 N.Y.U. L.
REV. 781, 783 (1994); Note, The Right to Be Free From Arbitrary Probation Detention, 135 HARV. L.
R. 1126 (2022); ALEC KARAKATSANIS, USUAL CRUELTY: THE COMPLICITY OF LAWYERS IN THE
CRIMINAL INJUSTICE SYSTEM 78 (2019); Michael L. Zuckerman, When a Prison Sentence Becomes
Unconstitutional, 111 GEO. L.J. 281, 338–39 (2022).

Electronic copy available at: https://ssrn.com/abstract=4424954

106

CALIFORNIA LAW REVIEW

[Vol. 111:101

punishments that would typically be considered unconstitutional outside of the
punishment context. To be sure, as alternatives to incarceration gain in
popularity, scholars and activists have raised alarm about the restrictive and
invasive nature of non-carceral punishments and how they reproduce the
racialized carceral state, even if to a lesser degree than physical incarceration. 15
My own prior experience defending young people in juvenile delinquency
court reinforced these concerns. I saw firsthand how non-carceral punishments—
such as house arrest, therapeutic courts, halfway houses, and GPS-ankle
monitoring—were not so much alternatives to incarceration, but alternative
forms of incarceration. 16 Even the label “non-carceral” is imperfect as it fails to
capture the myriad ways that distinctly carceral logic defines purported
alternatives to incarceration. 17
Overlooked by scholars and courts alike, however, is the legal doctrine—
and lack thereof—that has facilitated the proliferation of non-carceral
punishments that restrict basic rights. Neither the text of the Constitution nor
basic constitutional principles offer doctrinal support for exempting state action
in the form of non-carceral punishment from traditional constitutional scrutiny. 18
Indeed, in his dissent in Samson v. California, in which the majority upheld
suspicionless searches of people on parole, Justice Stevens cautioned that the
Court has never “sanctioned the use of any search as a punitive measure.”19
Following this logic, a small handful of courts appear to reject punishment
exemption and subject at least some non-carceral punishments to traditional
constitutional scrutiny, but they are the rare exception. 20
15. See, e.g., Michelle Alexander, The Newest Jim Crow, N.Y. TIMES (Nov. 8, 2018),
https://www.nytimes.com/2018/11/08/opinion/sunday/criminal-justice-reforms-race-technology.html
[https://perma.cc/UV4E-B9JG]; Patricia J. Williams, Why Everyone Should Care About Mass Ecarceration, NATION (Apr. 29, 2019), https://www.thenation.com/article/archive/surveillance-prisonrace-technology/ [https://perma.cc/U3SS-AKCD]; Miller & Alexander, supra note 5, at 294; Allegra M.
McLeod, Decarceration Courts: Possibilities and Perils of A Shifting Criminal Law, 100 GEO. L.J.
1587, 1591 (2012); Chaz Arnett, From Decarceration to E-carceration, 41 CARDOZO L. REV. 641, 663
(2019); MAYA SCHENWAR & VICTORIA LAW, PRISON BY ANY OTHER NAME 57 (2020); Aya Gruber,
Amy J. Cohen & Kate Mogulescu, Penal Welfare and the New Human Trafficking Intervention Courts,
68 FLA. L. REV. 1333, 1401 (2016); Jessica M. Eaglin, Against Neorehabilitation, 66 SMU L. REV.
189, 222 (2013); JAMES KILGORE, UNDERSTANDING E-CARCERATION: ELECTRONIC MONITORING,
THE SURVEILLANCE STATE, AND THE FUTURE OF MASS INCARCERATION (2022); Derecka Purnell,
Reforms Are The Master’s Tools, MEDIUM (Oct. 19, 2020), https://level.medium.com/the-system-isbuilt-for-power-not-justice-c83e6dc4dd66 [https://perma.cc/HW54-9RQJ].
16. See James Kilgore, Emmett Sanders & Kate Weisburd, The Case Against E-Carceration,
Inquest (July 30, 2021), https://inquest.org/the-case-against-e-carceration/.
17. See, e.g., McLeod, Decarceration Courts, supra note 15, at 1591 (observing that specialty
courts, a type of non-carceral punishment “threaten to produce a range of unintended and undesirable
outcomes: unnecessarily expanding criminal surveillance, diminishing procedural protections, and
potentially even increasing incarceration.”).
18. See Jones v. N.C. Prisoners’ Lab. Union, Inc., 433 U.S. 119, 141 (1977) (Marshall, J.,
dissenting) (questioning the “wholesale abandonment of traditional principles of [constitutional]
analysis” in the context of prison litigation).
19. Samson v. California, 547 U.S. 843, 864 (2006) (Stevens, J., dissenting) (emphasis added).
20. See infra Part II A.

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

107

More often, courts either ignore the rights-stripping nature of non-carceral
punishments, rely on the purported consent of the person subject to the
punishment, assume the restrictions are merely “conditions” and not punishment,
or uphold rights-restrictions that “reasonably relate” to rehabilitation or public
safety, a standard imported from the prison context.21 These deferential
approaches are consistent with Justices Scalia and Thomas’ view that states
should be afforded deference “to define and redefine all types of punishment,
including imprisonment, to [include] various types of deprivations” 22 and that
criminal conduct properly extinguishes the right against unwarranted
confinement and liberty. 23 In a dissent penned by Justice Thomas and joined by
Justice Scalia, the Justices explain that there is no general fundamental right to
freedom from bodily restraint; if there were, “convicted prisoners could claim
such a right,” and “we would subject all prison sentences to strict scrutiny[,
which] we have consistently refused to do.” 24 Under this view, it is only the
Eighth Amendment that limits punishment. 25
The problem, however, is that there is no obvious legal basis to exempt
punishment from traditional constitutional scrutiny that would otherwise
apply.26 Not only is consent a questionable legal basis, 27 but the “reasonably
related” standard is often inapplicable to the non-carceral setting,28 and
classifying the deprivation of rights as a “condition” or “regulation” and not
punishment is likewise legally, and factually, unsound. 29 Perhaps most
significant, these deferential justifications do not resolve why rights-restricting
punishments are exempt from the constitutional scrutiny that traditionally
applies to state action. 30 Rather, as this Article argues, state action is state action
regardless of the context. There is nothing exceptional about criminal
punishment that makes it immune from standard constitutional scrutiny. Indeed,
decades of prisoner’s rights litigation have helped establish that incarceration
does not escape constitutional scrutiny simply because it is imposed as
punishment. 31 It may be that many long prison sentences or certain types of noncarceral punishments are constitutional, but not because they are exempt from
traditional constitutional review.

21. See infra Part II B & III C.
22. Overton v. Bazzetta, 539 U.S. 126, 139 (2003) (Thomas, J., concurring in the judgment).
23. Foucha v. Louisiana, 504 U.S. 71, 121 (1992) (Thomas, J., dissenting).
24. Id. at 118.
25. Overton, 539 U.S. at 139-40 (Thomas, J., concurring).
26. Cf. Sandra G. Mayson, Dangerous Defendants, 127 YALE L. J. 490, 521 (2018) (considering
whether constitutional doctrine “grants the state more expansive authority to preventively restrain
defendants than members of the public at large”).
27. See infra Part III C.
28. See infra Part II B.
29. See infra Part III D; see also Weisburd, Punitive Surveillance, supra note 2, at 187.
30. See infra Part II B.
31. Id.

Electronic copy available at: https://ssrn.com/abstract=4424954

108

CALIFORNIA LAW REVIEW

[Vol. 111:101

While some progressive legal scholarship understandably questions the
efficacy of rights-based frameworks to disrupt the racial and economic inequities
endemic to the carceral state,32 this Article suggests that there is value added in
challenging the legitimacy of punishment exemption and exposing its lack of
jurisprudential support. On an immediate and pragmatic level, applying greater
scrutiny to the deprivation of rights associated with punishment can shrink the
carceral apparatus and rein in extreme rights infringements, as well as make
visible rights-deprivations that currently fly below the radar. A more radical
reimagination of the carceral state—in all its permutations—is also in order,33
and, at the same time, the need to reckon with the current state of punishment
law remains.
On a broader jurisprudential level, exploring how rights-restricting
punishments escape traditional constitutional scrutiny reveals a categorical
chasm—and mismatch—between the fields of criminal procedure and
constitutional law.34 The surveillance inherent in electronic monitoring and
community supervision, for example, raises not just Fourth Amendment
concerns, but also implicates First Amendment and substantive due process
rights. Likewise, requiring someone to write an apology letter raises First
Amendment concerns, but such a requirement could also be viewed as raising
Fifth Amendment concerns, since an inculpatory statement could be used against
them in a later proceeding. Yet, the legal analysis of these practices is routinely
siloed, with courts opting to not analyze Fourth Amendment problems as First
Amendment or as substantive due process problems and vice versa. 35 The
disconnect between criminal procedure and constitutional law is neither
preordained nor inevitable. In fact, by having law students take separate classes
in criminal procedure and constitutional law, the legal academy sends a clear
message that criminal procedure is not constitutional law, even though the two
fields both focus on constitutional text and amendments.36 This divide reflects—

32. See Paul Butler, The System Is Working the Way It Is Supposed to: The Limits of Criminal
Justice Reform, 104 GEO. L.J. 1419, 1467 (2016); Justin Driver, Reactionary Rhetoric and Liberal Legal
Academia, 123 YALE L.J. 2616, 2621 (2014); Matthew Clair & Amanda Woog, Courts and the
Abolition Movement, 110 CALIF. L. REV. 1, 6 (2022); Kathryn E. Miller, The Myth of Autonomy Rights,
43 CARDOZO L. REV. 376, 440 (2021).
33. See, e.g., Amna A. Akbar, Toward A Radical Imagination of Law, 93 N.Y.U. L. REV. 405,
479 (2018) (arguing for a “radical reimagination of the state and of law” in alignment with “social
movements”).; Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. REV. 1156,
1171 (2015) (“motivat[ing] the case for a prison abolitionist ethic”); MARIAME KABA, WE DO THIS ‘TIL
WE FREE US: ABOLITIONIST ORGANIZING AND TRANSFORMING JUSTICE 14–18 (2021) (advocating for
a new abolitionist perspective in law and society).
34. See Sharon Dolovich and Alexandra Natapoff, New Criminal Justice Thinking, 10—12
(making the case for a broad understanding of criminal law that accounts for both civil and criminal
laws).
35. See Alex Abdo, Why Rely on the Fourth Amendment to Do the Work of the First?, 127 YALE
L.J. FORUM 444, 451 (2017).
36. For a detailed analysis of the law school curriculum as “pro-carceral” and underinclusive,
see Shaun Ossei-Owusu, Making Penal Bureaucrats, INQUEST (Aug. 23, 2021),

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

109

and may help explain—why criminal punishments are generally not viewed as
raising constitutional concerns beyond the Eighth Amendment.
This Article proceeds in four Parts. Drawing on a large and ongoing
empirical research project, Part I offers a portrait of rights-restricting noncarceral punishments to bring into focus the scope and impact of punishment
exemption. Part II draws on the text of the Constitution as well as foundational
constitutional principles to demonstrate the lack of jurisprudential support for
punishment exemption. Part III addresses five anticipated objections: first, that
prison is more restrictive than most non-carceral punishments yet still perfectly
legal. Second, that but for non-carceral punishments people would otherwise be
imprisoned. Third, that consent nullifies the need to address constitutional
questions. Fourth, that the deprivation of rights is not punishment, but rather
conditions or rules. And fifth, that the Eighth Amendment is the only
constitutional provision that limits punishment. Part IV explores the implications
of applying traditional constitutional scrutiny to not just non-carceral
punishment, but all punishment. It explains how restrictions on religion or
speech, for example, are unconstitutional punishments unless they pass the
applicable First Amendment scrutiny. The Article concludes with lessons for the
future of decarceration.
I.
A PORTRAIT OF RIGHTS VIOLATIONS AS PUNISHMENT
As courts and legislators increasingly look to non-carceral punishments—
often in the name of decarceration—the lack of jurisprudential support for these
rights-restricting punishments comes into sharp focus. Drawing on my original
empirical research, this Part shines a light on a few examples of rights-restricting
non-carceral punishments, the impact of the restrictions, and how they exemplify
the problem of exempting punishment from traditional constitutional review.
A. The Rise of Non-Carceral Punishment
Several forces have contributed to the increased use of non-carceral
punishments: bipartisan interest in curbing mass incarceration, advances in
surveillance technology, and the influence of the “technocorrections”37 industry
and other private vendors that market “alternatives” to incarceration. 38 Together,
https://inquest.org/making-penal-bureaucrats/ [https://perma.cc/MAY3-345B]; Alice Ristroph, The
Curriculum of the Carceral State, 120 COLUM. L. REV. 1631 (2020); Sharon Dolovich, Teaching Prison
Law, 62 J. LEGAL EDUC. 218, 222 (2012).
37. Ruha Benjamin, The Shiny, High-Tech Wolf in Sheep’s Clothing, LEVEL (Oct. 22, 2020),
https://level.medium.com/the-shiny-high-tech-wolf-in-sheeps-clothing-17d8db219b6d
[https://perma.cc/JCC9-FZ8E].
38. Appleman, supra note 3, at 2; Malcolm M. Feeley, Entrepreneurs of Punishment: How
Private Contractors Made and Are Remaking the Modern Criminal Justice System - An Account of
Convict Transportation and Electronic Monitoring, 17 CRIMINOLOGY, CRIM. JUST. L. & SOC’Y 1, 24
(2016).

Electronic copy available at: https://ssrn.com/abstract=4424954

110

CALIFORNIA LAW REVIEW

[Vol. 111:101

these forces, further accelerated by the COVID-19 crisis in prisons and jails,
produced an expanded landscape of incarceration alternatives, including
therapeutic and (or) mental health courts,39 electronic monitoring, 40 community
service programs, 41 drug courts,42 restitution centers, 43 residential religious
treatment programs, 44 domestic violence and sex offense courts, 45 shoplifting
diversion, 46 special court programs for people convicted of prostitution,47
community courts, 48 treatment centers,49 and police- or prosecutor-led
restorative justice circles, 50 to name just a few.
In general, non-carceral punishments are imposed in low-level felonies,
misdemeanors, non-violent crimes, or for people accused of crimes for the first
time. 51 As Professor Issa Kohler-Hausmann describes her experience observing
criminal court in New York City, “[s]it in any misdemeanor arraignment or all-

39.
40.

McLeod, Decarceration Courts, supra note 15, at 1613.
Eli Hager, Where Coronavirus Is Surging—And Electronic Surveillance, Too, MARSHALL
PROJECT (Nov. 22, 2020), https://www.themarshallproject.org/2020/11/22/where-coronavirus-issurging-and-electronic-surveillance-too [https://perma.cc/GR5N-YV5Q]; April Glaser, Incarcerated at
Home: The Rise of Ankle Monitors and House Arrest During the Pandemic, NBC NEWS (July 5, 2021),
https://www.nbcnews.com/tech/tech-news/incarcerated-home-rise-ankle-monitors-house-arrestduring-pandemic-n1273008 [https://perma.cc/UR8D-WTNB].
41. Lucero Herrera, Tia Koonse, Melanie Sonsteng-Person & Noah Zatz, Work, Pay, or Go to
Jail: Court-Ordered Community Service in Los Angeles, UCLA Lab. Ctr. & UCLA School of Law (Oct.
2019), https://www.labor.ucla.edu/publication/communityservice/ [https://perma.cc/74ED-YQRN].
42. SCHENWAR, supra note 15, at 5; Erin R. Collins, The Problem of Problem-Solving Courts,
54 U.C. DAVIS L. REV. 1573, 1578 (2021); Jessica M. Eaglin, The Drug Court Paradigm, 53 AM. CRIM.
L. REV. 595, 597 (2016); Josh Bowers, Contraindicated Drug Courts, 55 UCLA L. REV. 783, 835
(2008); Eric J. Miller, Embracing Addiction: Drug Courts and the False Promise of Judicial
Interventionism, 65 OHIO STATE L.J. 1479, 1479 (2004).
43. Anna Wolfe & Michelle Liu, Think Debtors Prisons Are a Thing of the Past?, MARSHALL
PROJECT (Jan. 9, 2020), https://www.themarshallproject.org/2020/01/09/think-debtors-prisons-are-athing-of-the-past-not-in-mississippi [https://perma.cc/8JDV-GKDU].
44. Shoshana Walter, At Hundreds of Rehabs, Recovery Means Work Without Pay, REVEAL
PODCAST (July 7, 2020), https://revealnews.org/article/at-hundreds-of-rehabs-recovery-means-workwithout-pay/ [https://perma.cc/G44H-QRSP].
45. McLeod, Decarceration Courts, supra note 15, at 1621; Erin R. Collins, Status Courts, 105
GEO. L.J. 1481, 1483 (2017).
46. John Rappaport, Criminal Justice, Inc., 118 COLUM. L. REV. 2251, 2272 (2018).
47. Christina Goldbaum, Charged With Prostitution, She Went to a Special Court. Did It Help?,
N.Y. TIMES (Jan. 6. 2020), https://www.nytimes.com/2020/01/06/nyregion/ny-prostitution-courts.html
[https://perma.cc/AGA4-BM4G]; Gruber et. al., supra note 15, at 1333.
48. Anthony C. Thompson, Courting Disorder: Some Thoughts on Community Courts, 64
WASH. UNIV. J. L. & POL’Y 63, 81 (2002).
49. See Priscilla A. Ocen, Awakening to a Mass Supervision Crisis, ATLANTIC (Dec. 26. 2019),
https://www.theatlantic.com/politics/archive/2019/12/parole-mass-supervision-crisis/604108/
[https://perma.cc/GCS4-39FE].
50. Bruce A. Green & Lara Bazelon, Restorative Justice from Prosecutors’ Perspective, 88
FORDHAM L. REV. 2287, 2303 (2020).
51. See Jenny Roberts, Informed Misdemeanor Sentencing, 46 HOFSTRA L. REV. 171, 174
(2017); Fiona Doherty, Testing Periods and Outcome Determination in Criminal Cases, 103 MINN. L.
REV. 1699, 1704 (2019); Fiona Doherty, Obey All Laws and Be Good: Probation and the Meaning of
Recidivism, 104 GEO. L. J. 291, 294, 334 (2016); Alexandra Natapoff, Misdemeanor Decriminalization,
68 VAND. L. REV. 1055, 1086 (2015).

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

111

purpose part in the city, and you will hear a veritable alphabet soup of programs
being offered and accepted as part of case dispositions.”52 Usually imposed at
sentencing, these punishments are often standalone programs but other times
take the form of additional conditions or restrictions added onto already existing
sanctions. People convicted of crimes are most frequently asked to consent to
certain non-carceral punishments, even though the court has the authority to
impose the punishment regardless of the individual’s consent.53 While these
programs do not involve jail time, they represent what Professors Jonathan
Simon and Malcolm Feeley term the “new penology,” which relies on techniques
to “identify, classify, and manage” people based on their alleged offense. 54
Although there are many examples of non-carceral punishment, this
Section focuses on only a few, with the goal of highlighting the ways in which
non-carceral punishment escapes traditional constitutional scrutiny. Many of
these examples come from my large and ongoing empirical research project
examining the operation of punishment outside of prisons. 55 This research
involves collecting and analyzing hundreds of agency records (such as rules and
internal policies) that govern non-carceral punishment. Taken together, these
records paint a vivid picture of carceral practices operating outside of physical
prisons. The categories below are approximate, as there is often overlap between
programs or different names for the same program depending on the jurisdiction.
1. Probation, Parole, and Supervised Release
Probation, parole, and other forms of court supervision have long been
deployed as alternatives to incarceration, while also being recognized as
punishment. 56 There are currently nearly 4.5 million people on probation, parole,
or supervised release. 57 Probation is generally imposed in cases where a
defendant is not eligible for a prison sentence or might otherwise be incarcerated
but is instead sentenced to probation. Parole, by contrast, is most often provided

52. ISSA KOHLER-HAUSMANN, MISDEMEANORLAND: CRIMINAL COURTS AND SOCIAL
CONTROL IN AN AGE OF BROKEN WINDOWS POLICING 241 (2018).
53. See infra Part III C; Kate Weisburd, Carceral Control: A Nationwide Survey of Criminal
Court Supervision Rules, HARV. C.R.-C.L. L. REV., 11 (forthcoming 2023) (on file with author).
54. Malcolm Feeley & Jonathan Simon, The New Penology: Notes on the Emerging Strategy of
Corrections and Its Implications, 30 CRIMINOLOGY 449, 452 (1992).
55. See Weisburd et al., Electronic Prisons: The Operation of Electronic Monitoring in the
Criminal Legal System, GEO WASH. LEGAL STUD. RSCH. PAPER NO. 2021-41 (Sept. 27, 2021),
https://ssrn.com/abstract=3930296 (herein after “Electronic Prisons”); Weisburd, Carceral Control,
supra note 53.
56. 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);
Michelle S. Phelps, The Paradox of Probation: Community Supervision in the Age of Mass
Incarceration, 35 L. POL’Y 51, 52 (2013); Cecelia Klingele, Rethinking the Use of Community
Supervision, 103 J. CRIM. L. & CRIMINOLOGY 1015, 1018 (2013).
57. Barbara Oudekerk & Danielle Kaeble, Probation and Parole in the United States, 2019,
BUREAU OF JUST. STAT. (July 2021), https://bjs.ojp.gov/library/publications/probation-and-paroleunited-states-2019 [https://perma.cc/P223-YGQ2].

Electronic copy available at: https://ssrn.com/abstract=4424954

112

CALIFORNIA LAW REVIEW

[Vol. 111:101

for by statute and exists as a way for people to complete their prison sentence
outside of a prison. In the federal system, federal supervised release is added on
at the end of a prison sentence.58
The deprivation of rights is a definitional part of court supervision. As other
scholars have shown, people on probation, parole, and supervised release are
subject to dozens of restrictive and invasive rules.59 These rules govern all
aspects of life: suspicionless searches, random drug testing, collection of DNA
samples, court-mandated treatment programs, community service, restrictions on
associating with certain people, curfews, and house arrest are all common
features of court supervision. 60
2. Halfway Houses and Work Centers
Throughout the country, people are often sentenced to spend time after a
prison sentence at halfway houses, residential drug treatment programs, or work
centers. Because people sent to these residential programs are often already on
probation, parole, or supervised release, they are subject to multiple sets of
rules—the rules governing court supervision and the rules of the program and/or
facility. In most places, the programs are residential, and participants must abide
by curfew and are limited in when they can leave and where they can go. 61 In
many work and restitution centers, residents are restricted in the use of their
income. They are often prevented from having ATM cards and forced to save a
certain percentage of their income. 62
Many of these programs also limit people’s travel rights.63 For example, a
work release center in California forbids residents from leaving during the first
few weeks of the program. 64 Even after the first few weeks, residents cannot
drive a car or leave the center without an approved pass that includes a
description of everyone and every place the resident will visit.65
Work and restitution centers take different forms. In Mississippi, people are
sentenced to restitution centers where, for months (and sometimes years), they
work for less than minimum wage and the state collects their pay, giving them
only enough money to buy necessities.66 Likewise, in Oklahoma, people are
58. See Jacob Schuman, Supervised Release is Not Parole, 53 LOY. L.A. L. REV. 587, 601
(2020).
59. See Doherty, supra note 51; Phelps, supra note 56; Tonja Jacobi, L. Song Richardson &
Gregory Barr, The Attrition of Rights Under Parole, 87 S. CALIF. L. REV. 887 (2014); Alexis Karteron,
Family Separation Conditions, 122 COLUM. L. REV. 649 (2022).
60. See Doherty, supra note 51.
61. Id.; Ocen, supra note 49; Eric Borsuk, Inside the Absurd Limbo of a Post-Prison Halfway
House, VICE (Feb. 9, 2015), https://www.vice.com/en/article/vdpakb/halfway-to-nowhere-0000582v22n2 [https://perma.cc/WG4U-6MYX].
62. Ocen, supra note 49.
63. Id.
64. Id.
65. Id.
66. See Wolfe & Liu, supra note 43.

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

113

sentenced to rehabilitation camps where they are required to work for free often
in poor conditions, like in chicken processing plants.67
Non-government entities, both for-profit companies and non-profits,
operate most halfway houses. The GEO Group, which is one of the largest
contractors for private prisons and electronic monitoring in the country, runs
Community Education Centers, which operate almost 30% of halfway houses
nationwide. 68 The federal government also operates over 150 residential reentry
centers with a capacity of almost 10,000 residents. 69 Several work-release
programs—both publicly- and privately-run—have been criticized for returning
participants to prison for minor rule violations, retaliation, arbitrary discipline by
staff, rampant violence, and inadequate staffing.70
3. Problem-Solving Courts and Treatment Programs
There is a rich literature on the operation and efficacy of problem-solving
courts and related specialized diversion programs. 71 These courts and treatment
programs aim to address a wide range of issues (mental health, drug treatment,
human trafficking, and prostitution, among others) and have different titles, such
as community courts, drug courts, and specialty courts. Nonetheless, these
programs share common characteristics. Most people are referred to problemsolving courts as part of the case disposition or are required to plead guilty as a
prerequisite for entering the program. Treatment programs are likewise ordered
as part of a case disposition, usually in addition to some form of court
supervision. Problem-solving courts and treatment programs often involve a host
of rights-deprivations, from limited access to counsel to suspicionless searches
and mandated treatment programs.72 Participants who successfully complete the
programs are sometimes eligible to have their case dismissed and (or) their

67. See Walter, supra note 44; Welcome to CAAIR, CHRISTIAN ALCOHOLICS & ADDICTS IN
RECOVERY [CAAIR], https://caair.org/ [https://perma.cc/FP6U-CVF8]; Appleman, supra note 3, at 1.
68. Roxanne Daniel & Wendy Sawyer, What You Should Know About Halfway Houses, PRISON
POL’Y INITIATIVE (Sept. 3, 2020), https://www.prisonpolicy.org/blog/2020/09/03/halfway/
[https://perma.cc/ZRD4-G4G2].
69. Daniel & Sawyer, supra note 68.
70. Paul Kiefer, Investigation of Work Release Centers Spurs Some Changes, But Advocates
Proceed with Caution, PUBLICOLA (July 7, 2021) https://publicola.com/2021/07/07/investigation-ofwork-release-centers-spurs-some-changes-but-advocates-proceed-with-caution/
[https://perma.cc/X6PW-7LZV]; Sam Dolnick, As Escapees Stream Out, a Penal Business Thrives,
N.Y. TIMES (June 16, 2012), https://www.nytimes.com/2012/06/17/nyregion/in-new-jersey-halfwayhouses-escapees-stream-out-as-a-penal-business-thrives.html [https://perma.cc/4UMN-56WX].
71. See, e.g., McLeod, Decarceration Courts, supra note 15; Christine S. Scott-Hayward,
Rethinking Federal Diversion: The Rise of Specialized Criminal Courts, 22 BERKELEY J. CRIM. L. 47,
50 (2017); Michael D. Sousa, Procedural Due Process, Drug Courts, and Loss of Liberty Sanctions, 14
N.Y.U. J.L. & LIBERTY 733 (2021); Gruber et. al., supra note 15, at 1380; Collins, Problem, supra note
42, at 1601; Jessica M. Eaglin, Against Neorehabilitation, 66 SMU L. REV. 189, 222 (2013).
72. See McLeod, Decarceration Courts, supra note 15; at 1691; Collins, Problem, supra note
42, at 1491; Mae C. Quinn, Whose Team Am I on Anyway? Musings of a Public Defender About Drug
Treatment Court Practice, 26 N.Y.U. Rev. L. & Soc. Change 37, 50–52 (2000).

Electronic copy available at: https://ssrn.com/abstract=4424954

114

CALIFORNIA LAW REVIEW

[Vol. 111:101

record expunged. 73 The detailed, invasive, and onerous conditions of these
programs make them easy to fail. People are often reincarcerated not for new
offenses, but for violations of technical requirements.74 As a result, these
programs have been criticized as net-widening, pathologizing, and ineffective.75
4. Electronic Monitoring and Other Forms of Technological Surveillance
Every state uses some form of electronic ankle monitoring or surveillance,
which is most often imposed in addition to probation, parole, or pretrial release.76
The use of this technology is increasing exponentially, fueled in part by the
COVID-19 pandemic.77 Although electronic monitoring data is limited, numbers
from a few jurisdictions reflect its increasing use. For example, in Harris County,
Texas, electronic ankle monitoring skyrocketed from a daily average of 27
people on monitors in 2019 to over 4,000 people on monitors in 2021.78 In Cook
County, Illinois, there are over 3,000 people on monitors, which represents
almost a 25% increase from the year before. 79 These numbers reflect national
trends. 80
Electronic surveillance includes tracking and analyzing people’s location
data, monitoring online activity, searching the contents of cell phones, and
recording conversations between people. 81 In reviewing agency records
governing the use of electronic ankle monitors, a few themes emerged. First,
people on monitors are almost always required to remain in their homes unless
they receive prior permission to leave from a supervising agent or agency, a
rarely straightforward process. 82 For example, visiting the doctor, attending
religious services, shopping, and taking children to school all require

73. SCHENWAR, supra note 15, at 97.
74. See, 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 a net widener and an
alternative to traditional incarceration); Doherty, supra at 51, at 345; Kate Weisburd, Sentenced to
Surveillance: Fourth Amendment Limits on Electronic Monitoring, 98 N.C. L. Rev. 717, 774 (2020).
75. Melissa Gira Grant, Human Trafficking Courts Are Not a Criminal Justice “Innovation”,
NEW REPUBLIC (Jan. 7, 2020), https://newrepublic.com/article/156135/human-trafficking-courts-notcriminal-justice-innovation [https://perma.cc/KHG2-8TSR]; Gruber et. al., supra note 15, at 1380;
McLeod, Decarceration Courts, supra note 15, at 1631; Collins, supra note 42, at 1601.
76. See Arnett, supra note 15, at 663; Avlana K. Eisenberg, Mass Monitoring, 90 S. CALIF. L.
REV. 123, 161 (2017); Weisburd, Punitive Surveillance, supra note 2; Patrice James, et. Al., Cages
Without Bars: Pretrial Electronic Monitoring Across the United States, Shriver Center on Poverty Law,
Media Justice, Chicago Appleseed, Sept. 2022.
77. See Hager, supra note 40; Glaser, supra note 40.
78. Mario Díaz, Harris County Electronic Monitor Population Skyrockets to Nearly 4,000,
HOUSTON NBC (Oct. 15, 2021), https://www.click2houston.com/news/investigates/2021/10/15/harriscounty-electronic-monitor-population-skyrockets-to-nearly-4000/ [https://perma.cc/FV75-8FC4].
79. 10 Facts About Electronic Monitoring in Cook County, Chicago Appleseed (Sept. 2021)
https://www.chicagoappleseed.org/wp-content/uploads/2021/11/202109_10-Facts-EM-Cook-CountyEM-FINAL-updated.pdf [https://perma.cc/3HVB-HCSH].
80. Electronic Prisons, supra note 55, at 2.
81. Id. at 1.
82. Id. at 4.

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

115

preapproval.83 Second, people on monitors have their precise location data
tracked, analyzed, and shared with law enforcement and courts. Most of the
agency records in our research did not contain any privacy protection for the
sensitive data collected through ankle monitors. 84 Third, people on ankle
monitors are often subject to both the rules governing court supervision, as well
as the additional (and often more restrictive and invasive) rules governing
monitoring. 85
Other forms of technological surveillance are also proliferating. For
example, people are often tracked through cellphone applications86 or are
required to wear devices that detect drug or alcohol use.87 These applications and
devices allow for “perfect detection of inevitable imperfections”88 with rules and
requirements,
thus
raising
concerns
about
hyper-compliance,
overcriminalization and the invasiveness of the surveillance. 89 Suspicionless
searches of people’s electronic devices is also common. In a fifty-state survey of
rules governing court supervision, almost a quarter of the programs allow for
warrantless searches of electronic devices.90 Finally, in some places, people on
court supervision must agree to have their social media accounts monitored. For
example, the rules for probation in Pima County, Arizona state: “I understand all
social media accounts (e.g., Facebook, Snapchat, Twitter, etc.) are subject to
search. I will provide all passcodes, usernames, and login information necessary
as directed by the IPS team.”91 Likewise, people on parole in Vermont must
“provide access to any social networking sites [they] participate in to [their]
Parole Officer.” 92

83. Id. at 6.
84. Id. at 9.
85. Sandra Susan Smith & Cierra Robson, Between a Rock and a Hard Place: The Social Costs
of Pretrial Electronic Monitoring in San Francisco, 10–11, Harvard Kennedy School, Faculty Research
Working Paper Series (Sept. 2022).
86. Molly Osberg & Dhruv Mehrotra, When Your Freedom Depends on an App, GIZMODO
(Apr.
27,
2020),
https://gizmodo.com/when-your-freedom-depends-on-an-app-1843109198
[https://perma.cc/8DDC-5M92]; Kentrell Owens, Anita Alem, Franziska Roesner & Tadayoshi Kohno,
Electronic Monitoring Smartphone Apps: An Analysis of Risks from Technical, Human-Centered, and
(Aug.
2022),
Legal
Perspectives,
USENIX
https://www.usenix.org/conference/usenixsecurity22/presentation/owens
[https://perma.cc/8V6XD7DD].
87. Maya Dukmasova, Cook County Judge Vazquez’s Heavy Use of Sobriety Monitor
WATCH
(Dec.
8,
2021),
Highlights
Oversight
Gaps,
INJUSTICE
https://www.injusticewatch.org/news/judicial-conduct/2021/judge-vazquez-scram-monitor/
[https://perma.cc/BYZ7-NRHU].
88. Weisburd, Sentenced to Surveillance, supra note 74, at 764.
89. Id.; see also Osberg & Mehrotra, supra note 86; Dukmasova, supra note 87; Jay-Z Invests
in Company That Tracks Parolees With GPS Software, BLACKBUSINESS.COM (May 30, 2019),
https://www.blackbusiness.com/2019/05/jayz-invests-promise-company-tracks-parolees-gpssoftware.html [https://perma.cc/9CY2-QP4U]; Glaser, supra note 40.
90. Weisburd, Carceral Control, supra note 53, at 13.
91. Id.
92. Id.

Electronic copy available at: https://ssrn.com/abstract=4424954

116

CALIFORNIA LAW REVIEW

[Vol. 111:101

B. The Scope of Rights Violations as Punishment
The rights-stripping nature of these punishments exemplifies how
punishment exemption operates: these rights-deprivations would likely be
unconstitutional if applied outside the context of punishment. Yet, because these
rights violations are part of punishment, they escape traditional constitutional
scrutiny. To be sure, some extreme features of probation and parole, such as
pornography bans, 93 church attendance requirements, 94 penile plethysmography
testing, 95 anti-procreation requirements, 96 and full internet bans 97 have been
struck down as unreasonable or not sufficiently related to rehabilitation. 98 But
these cases are the exception and not the norm. Constraints as extreme as these,
as well as more “garden variety” forms of non-carceral punishments are most
often upheld. These restrictions are generally upheld with either little or no
explanation or, as detailed below, upheld because the restriction “reasonably
relates” to a purpose of punishment, or because they are incorrectly categorized
as “conditions” or collateral and, therefore, are not punishment. 99
What follows are some of the ways that non-carceral punishments routinely
deprive people of constitutional rights but are nonetheless upheld as
constitutional.
1. First Amendment
There are several First Amendment concerns with non-carceral
punishment. First, restrictions such as internet bans, surveillance of personal
electronic devices, social media account monitoring, cellphone-use limitations,
and prohibitions on communicating with certain people all chill free speech.100
Courts routinely uphold conditions of release that limit a person’s right to
protest, 101 associate with certain people,102 and visit certain cultural clubs and
social organizations. 103 For people convicted of certain sex offenses, possessing
93. Laura A. Napoli, Demystifying “Pornography”: Tailoring Special Release Conditions
Concerning Pornography and Sexually Oriented Expression, 11 UNIV. N.H. L. Rev. 69, 83 (2013).
94. State v. Evans, 796 P.2d 178, 182 (Kan. Ct. App. 1990).
95. United States v. McLaurin, 731 F.3d 258, 261–62 (2d Cir. 2013).
96. Trammell v. State, 751 N.E.2d 283, 290–91 (Ind. Ct. App. 2001); United States v. Harris,
794 F.3d 885, 889 (8th Cir. 2015).
97. United States v. Ellis, 984 F.3d 1092, 1095 (4th Cir. 2021).
98. See infra Part II B for a more detailed explanation of the “reasonably related” standard.
99. See infra Part III D.
100. Weisburd, Sentenced to Surveillance, supra note 74, at 735.
101. See, e.g., State v. Sahr, 470 N.W.2d 185, 194 (N.D. 1991) (fashioning probation conditions
curtailing the right to protest); United States v. Lowe, 654 F.2d 562, 567 (9th Cir. 1981) (same); State
v. Friberg, 421 N.W.2d 376, 380 (Minn. Ct. App. 1988) (same).
102. See, e.g., Electronic Prisons, supra note 55; United States v. Romig, 933 F.3d 1004, 100607 (8th Cir. 2019) (restriction on engaging in certain associational activities as a special condition of
supervised release was constitutional); United States v. Pacheco-Donelson, 893 F.3d 757, 762-763 (10th
Cir. 2018) (same); United States v. Evans, 883 F.3d 1154, 1161 (9th Cir. 2018) (same); People v. Lopez,
66 Cal. App. 4th 615, 629–630 (Cal. Ct. App. 1998) (same).
103. See Malone v. United States, 502 F.2d 554, 555 (9th Cir. 1974).

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

117

pornography is sometimes banned and more general bans or restrictions on
internet use are common.104
Second, some non-carceral punishments compel certain types of speech.105
For example, courts have sentenced people convicted of environmental crimes
(such as illegal disposal of hazardous waste) to become members of the Sierra
Club. 106 Likewise, appellate courts have upheld court-ordered treatment
programs, like programs aimed at people convicted of sex offenses or
shoplifting, that require participants to make statements about their
culpability.107 Other programs require participants to take polygraph tests.108
Still other programs require participants to undergo therapy and make statements
about their past drug use, mental health, and crimes—raising not only First
Amendment concerns, but also Fourth and Fifth Amendment concerns,
discussed infra.
Third, some non-carceral punishments raise Free Exercise Clause concerns.
For example, courts generally uphold requirements to participate in Alcoholics
Anonymous (“AA”) programs. 109 As others have noted, AA programs are
religious in nature and require participants to make statements about God.110
Prohibitions on leaving residential programs or travel restrictions related to
electronic monitoring or house arrest also implicate religious freedom because
people cannot freely attend religious services or worship. For example, people
on electronic ankle monitors in Milwaukee must obtain specific authorization to
attend church and for no more than four hours once a week.111 Conversely, some
programs require participants to attend religious programming.112
104. Napoli, supra note 93, at 77–79; Gabriel Gillett, A World Without Internet: A New
Framework for Analyzing a Supervised Release Condition That Restricts Computer and Internet Access,
79 FORDHAM L. REV. 217, 221 (2010); 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).
105. See Jaimy M. Levine, “Join the Sierra Club!”: Imposition of Ideology as a Condition of
Probation, 142 U. PA. L. REV. 1841, 1842–45 (1994) (collecting cases).
106. Id.
107. See, e.g., McKune v. Lile, 536 U.S. 24, 30 (2002) (finding that a rehabilitation program
requiring admission of a crime committed was constitutional); Roman v. DiGuglielmo, 675 F.3d 204,
214 (3d Cir. 2012) (same); Searcy v. Simmons, 299 F.3d 1220, 1224 (10th Cir. 2002) (same).
108. Ashley J. Fausset, Answer Me or Go to Jail: Why Court Ordered Polygraph Testing to Treat
Probationers Violates the Fifth Amendment, 21 AM. U. J. GENDER SOC. POL’Y & L. 455, 455 (2012).
109. See O’Connor v. State, 855 F.Supp. 303, 308 (C.D. Cal. 1994); Stafford v. Harrison, 766
F.Supp. 1014, 1018 (D. Kan. 1991); Christopher K. Smith, State Compelled Spiritual Revelation: The
First Amendment and Alcoholics Anonymous as a Condition of Drunk Driving Probation, 1 WM. &
MARY BILL RTS. J. 299, 313 (1992).
110. Michael G. Honeymar, Jr., Alcoholics Anonymous as a Condition of Drunk Driving
Probation: When Does It Amount to Establishment of Religion?, 97 COLUM. L. REV. 437, 437 (1997);
Byron K. Henry, In “A Higher Power” We Trust: Alcoholics Anonymous as a Condition of Probation
and Establishment of Religion, 3 TEX. WESLEYAN L. REV. 443, 445–47 (1997); Derek P. Apanovitch,
Religion and Rehabilitation: The Requisition of God by the State, 47 DUKE L.J. 785, 788–90 (1998).
111. Milwaukee Cnty., Wis., Justice Point, Supervision—GPS Policies & Procedures Manual 7
(2016) (on file with author).
112. Appleman, supra note 3, at 1.

Electronic copy available at: https://ssrn.com/abstract=4424954

118

CALIFORNIA LAW REVIEW

[Vol. 111:101

Fourth, restrictions that limit who people can spend time with raise freedom
of association concerns. In my nationwide survey of court supervision rules, well
over half of the programs limited or regulated who people could spend time with
and (or) be around.113 Over a quarter of the programs prohibit participants from
being around people with a criminal record, a felony conviction, or who are on
court supervision themselves. 114
Some rules also limit social relationships based on vague characteristics.115
For example, in Alabama, people on parole must “avoid persons or places of
disreputable or harmful conduct or character.” 116 Likewise, in Kansas, people
must “avoid persons and places of harmful and/or disreputable character,
including establishments whose primary source of income is from the sale of
alcohol.” 117
Travel restrictions that forbid people from leaving a certain geographical
area, as well as curfews and prohibitions on who is allowed into someone’s
home, are very common and raise similar freedom of association concerns.118
For example, in Montgomery County, Pennsylvania, people on ankle monitors
are prohibited from having more than two “visitors in [their] place of residence”
per day. 119 For people subject to house arrest or electronic monitoring, attending
a political rally without prior approval may be a violation of their release
conditions.120
2. Fourth Amendment
Non-carceral punishments also violate the Fourth Amendment in ways that
would be clearly unconstitutional if applied outside the context of punishment.
There are several features of non-carceral punishments that raise Fourth
Amendment concerns.
First, most forms of non-carceral punishment involve a substantial loss of
privacy. Suspicionless searches of people and homes are common features of

113. Weisburd, Carceral Control, supra note 53, at 16–17.
114. Id.
115. Doherty, Obey All Laws, supra note 51, at 68.
116. Electronic Prisons, supra note 55, at 14.
117. Id.
118. Id.; see also Gordon Hill, The Use of Pre-Existing Exclusionary Zones As Probationary
Conditions for Prostitution Offenses: A Call for the Sincere Application of Heightened Scrutiny, 28
SEATTLE UNIV. L. REV. 173, 183–84 (2004) (writing about how “Stay Out of Areas of Prostitution”
(SOAP) orders “infringe on First Amendment rights of association”; United States v. Many White
Horses, 964 F.3d 825, 827 (9th Cir. 2020) ([i]t is well settled that a district court may impose a
geographic or residency restriction when it is properly supported by the record and substantively
reasonable).
119. MONTGOMERY CO. ADULT PROBATION & PAROLE DEP’T, PENN., RULES, REGULATIONS,
AND SPECIAL CONDITIONS OF ELECTRONIC MONITORING SUPERVISION (Aug. 2021) (on file with
author).
120. Weisburd, Punitive Surveillance, supra note 2, at 133.

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

119

many non-carceral punishments, most notably, probation and parole.121 In my
nationwide survey of rules governing various forms of court supervision, 65%
of the programs provided for physical searches of people’s homes, and of those,
the vast majority did not require any level of suspicion or a warrant.122 These
searches impact not just the person on supervision, but also everyone in their
household, violating what Professor David Sklansky terms “privacy as
refuge.” 123 There is even less privacy for people in residential programs or
halfway homes. For example, the Minnesota Department of Corrections requires
that halfway houses “[conduct] searches of residents, their belongings, and all
areas of the facility to control contraband and locate missing or stolen
property.” 124
Second, non-carceral punishments also often involve various types of body
searches, which are traditionally subject to Fourth Amendment constitutional
scrutiny. Drug and alcohol testing, for example, are common features of noncarceral punishment. 125 Likewise, people subjected to different forms of noncarceral punishment are often required to wear alcohol-detecting bracelets
(known as SCRAM) and submit DNA samples to law enforcement.126 These are
all Fourth Amendment searches that have been upheld as constitutional.127
Third, the various forms of electronic surveillance raise significant Fourth
Amendment concerns. Near constant location tracking (through GPS ankle
monitors), as well as monitoring and searching private social media accounts,
and personal electronic devices like computers and cellphones, are all Fourth
Amendment searches. 128 As I detail in prior work, electronic surveillance of
people on court supervision allows prosecutors and law enforcement, with the
click of a mouse, to access immense amounts of personal, otherwise private, data
at any time of day and without notice to the person subject to the surveillance.129

121. See Samson v. California, 547 U.S. 843, 844 (2006); United States v. Knights, 534 U.S. 112
(2001); Doherty, Obey All Laws, supra note 51, at 327; John Lassetter, Samson v. California: “Evil”
Suspicionless Searches Become a Part of Everyday Life for Parolees, 25 LAW & INEQ. 539 (2007);
David M. Stout, Home Sweet Home?! May Not for Parolees and Probationers When It Comes to Fourth
Amendment Protection, 95 KY. L.J. 811 (2007); Tonja Jacobi & Addie Maguire, Searches Without
Suspicion: Avoiding a Four Million Person Underclass, BYU L. REV. (forthcoming), available at
https://ssrn.com/abstract=4199658.
122. Weisburd, Carceral Control, supra note 53, at 13.
123. David Alan Sklansky, Too Much Information: How Not to Think About Privacy and the
Fourth Amendment, 102 CALIF. L. REV. 1069, 1113 (2014).
124. Daniel & Sawyer, supra note 68.
125. Electronic Prisons supra note 55, at 11; Cathryn Jo Rosen, The Fourth Amendment
Implications of Urine Testing for Evidence of Drug Use in Probation, 55 BROOK. L. REV. 1159, 1171–
78 (1990).
126. See, e.g., United States v. Kriesel, 508 F.3d 941, 947 (9th Cir. 2007) (DNA samples);
Kopkey v. State, 743 N.E.2d 331, 338 (Ind. Ct. App. 2001) (alcohol monitoring).
127. Weisburd, Sentenced to Surveillance, supra note 74, at 735.
128. Weisburd, Sentenced to Surveillance, supra note 74, at 745–46; Weisburd, Punitive
Surveillance, supra note 2, 176–77.
129. Weisburd, Punitive Surveillance, supra note 2, at 175.

Electronic copy available at: https://ssrn.com/abstract=4424954

120

CALIFORNIA LAW REVIEW

[Vol. 111:101

Electronic surveillance technology used to monitor people on court
supervision continues to develop. In some places, GPS ankle monitors are also
equipped with audio features that emanate loud beeping alerts and facilitate twoway conversations between people on the monitors and the agents monitoring
them. 130 The audio features mean that anyone within earshot will be alerted to
the monitor. 131 Although the Supreme Court has taken a hard line protecting
people’s location data, 132 those same protections are not extended to people on
various forms of criminal court supervision.133 For the most part, constitutional
challenges to electronic surveillance of people on court supervision have been
unsuccessful. 134
3. Fifth and Sixth Amendments
Non-carceral punishments also implicate the right to counsel and the right
against self-incrimination. Despite Fifth and Sixth Amendment concerns, courts
generally uphold requirements that people on supervision write apology letters,
discuss their alleged crime with probation and parole officers, or make other
incriminating statements. 135 Because these admissions occur outside of the
normal trial process, people are rarely provided counsel. And even if they have
a lawyer, the role of defense counsel in problem-solving courts is often limited
such that they are not a traditional advocate for their client. 136 Likewise,
significant limits on free movement and surveillance of personal electronic
devices also impact people’s ability to consult with a lawyer, if they have one.

130. 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-electronic-monitoringwiretapping-juveniles/ [https://perma.cc/Z8TX-9RL2]; Joshua Kaplan, D.C. Defendants Wear Ankle
Monitors That Can Record Their Every Word and Motion, WASH. CITY PAPER (Oct. 8, 2019);
Electronic Prisons, supra note 55, at 9.
131. Electronic Prisons, supra note 55, at 9.
132. See Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018); United States v. Jones, 565
U.S. 400, 415 (2012); Riley v. California, 573 U.S. 373, 403 (2014).
133. See Weisburd, Sentenced to Surveillance, supra note 74, at 745–46.
134. Id.
135. See Fausset, supra note 108; see also United States v. Riley, 920 F.3d 200, 205–07 (4th Cir.
2019) (finding that defendant’s right to receive a Miranda warning while in custody was not violated
because his confession was made during a probation revocation proceeding—not a criminal
proceeding); Minnesota v. Murphy, 465 U.S. 420, 440 (1984) (defendant “could not successfully invoke
the privilege [against self-incrimination] to prevent the information he volunteered to his probation
officer from being used against him in a criminal prosecution”); Ainsworth v. Stanley, 317 F.3d 1, 2 (1st
Cir. 2002) (holding that non-carceral “programs [that] require participants to accept responsibility for
their crimes” do not violate the Fifth Amendment).
136. Mae C. Quinn, Whose Team Am I on Anyway? Musings of a Public Defender About Drug
Treatment Court Practice, 26 N.Y.U. REV. L. & SOC. CHANGE 37, 53–63 (2000); Tamar M. Meekins,
“Specialized Justice”: The Over-Emergence of Specialty Courts and the Threat of the New Criminal
Defense Paradigm, 40 SUFFOLK UNIV. L. REV. 1, 38 (2006).

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

121

4. Substantive Due Process
Certain interests are so fundamental that government action cannot infringe
upon them “at all . . . unless the infringement is narrowly tailored to serve a
compelling state interest.” 137 There are several ways that non-carceral
punishments implicate fundamental interests protected by Substantive due
process.
First, restraints on movement and liberty are perhaps the most common
feature of most non-carceral punishments. People on house arrest, electronic
monitoring, or in halfway houses or residential treatment centers are generally
forbidden from leaving without some form of pre-approval. 138 For example,
people on electronic 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.” 139 Likewise, in Milwaukee, Wisconsin, 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), and to vote. 140 Bans on
deviating from set schedules, or even taking a different route home, are also
common requirements of electronic ankle monitoring.141
Limitations on travel and transportation methods are also common. For
example, in Alaska, Washington, Vermont and, New Hampshire people on
various forms of supervision cannot operate, and in some instances, purchase a
car without approval.142 In New York City, people may be prohibited from using
or entering any Metropolitan Transportation Authority subway, train, and bus for
up to three years following their release. 143
Restrictions on where, and with whom, people can live feature prominently
in most forms of non-carceral punishment. 144 For example, people on electronic
monitoring in Kentucky are not permitted to live in Section 8 housing or public
housing. Still other programs forbid or discourage people from living in hotels,
shelters, or temporary housing. 145 In many places, people are limited to only
living in homes “approved” by the supervising agent. 146 In many places, people
cannot live with others who have a criminal record, and in some places, people
must obtain permission or provide notice to their supervising agent before
someone new moves into their household. 147 These restraints all burden people’s
liberty interests, as well as the right to bodily autonomy.

137.
138.
139.
140.
141.
142.
143.
144.
145.
146.
147.

Reno v. Flores, 507 U.S. 292, 302 (1993).
See Electronic Prisons, supra note 55, at 10; see also supra Part I A.
Electronic Prisons, supra note 55, at 7.
Id.
Id., at 14.
Weisburd, Carceral Control, supra note 53, at 15.
Id.
Electronic Prisons, supra note 55, at 17.
Weisburd, Carceral Control, supra note 53, at 15.
Id. at 15–16.
Id. at 16.

Electronic copy available at: https://ssrn.com/abstract=4424954

122

CALIFORNIA LAW REVIEW

[Vol. 111:101

The aforementioned curfews and limits on travel—such as prohibitions on
leaving, entering, or living in a certain home, city, county, or country—infringe
on liberty interests. In my nationwide survey of court supervision rules, 80%
include some form of travel ban that either forbids people from leaving a certain
geographical area or requires permission before leaving. 148 This means people
are prohibited from visiting family, friends, and care providers—like doctors—
without first getting permission.
Second, restraints on personal and intimate relationships are common
features of non-carceral punishments that implicate individual autonomy
protected by Substantive due process.149 In some places, people cannot marry
without the approval of their probation or parole officer,150 a type of restriction
that has been expressly rejected in the context of prisons.151 Relatedly, people on
probation for certain sex offenses in Maricopa County, Arizona, must “obtain
prior written approval . . . before socializing, dating, or entering into a sexual
relationship with any person who has children under the age of 18.” 152 And in
Virginia, people on monitors are required to “inform persons with whom you
have a significant relationship of your sexual offending behavior as directed by
your supervising officer and/or treatment provider.” 153 These restrictions limit
autonomy and simultaneously reinforce the “state’s interest in cultivating
disciplined sexual citizens.”154
Non-carceral punishments also impact the right to parent. For example, in
some places, courts have upheld restrictions on the ability to have children.155
These restrictions can take different forms, including permanent sterilization,
forced birth control, and general prohibitions against having children. 156 As
Professor Alexis Karteron documents, common features of court supervision
undermine the right to parent and result in the separation of families.157 For
example, courts routinely uphold limitations on living, visiting, or socializing
with your own children 158 or other children. 159 Many programs include such

148. Weisburd, Carceral Control, supra note 53, at 15.
149. See, e.g., Obergefell v. Hodges, 576 U.S. 644 (2015); Loving v. Virginia, 388 U.S. 1 (1967);
Zablocki v. Redhail, 434 U.S. 374 (1978).
150. Electronic Prisons, supra note 55, at 14.
151. Turner v. Safley, 482 U.S. 78, 95 (1987).
152. Weisburd, Carceral Control, supra note 53, at 20.
153. Id.
154. Melissa Murray, Marriage as Punishment, 112 COLUM. L. REV. 1, 51 (2012).
155. See State v. Kline, 963 P.2d 697, 699 (Or. Ct. App. 1998); State v. Oakley, 629 N.W.2d 200,
214 (Wis. 2001).
156. Devon A. Corneal, Limiting the Right to Procreate: State v. Oakley and the Need for Strict
Scrutiny of Probation Conditions, 33 SETON HALL L. REV. 447, 470 (2003); Catherine Albiston, The
Social Meaning of the Norplant Condition: Constitutional Considerations of Race, Class, and Gender,
9 BERKELEY WOMEN’S L.J. 9, 10 (1994).
157. Karteron, supra note 59, at 657.
158. Id.; see also United States v. Myers, 426 F.3d 117, 125 (2d Cir. 2005); United States v. Wolf
Child, 699 F.3d 1082, 1091 (9th Cir. 2012).
159. United States v. Roy, 438 F.3d 140, 144-45 (1st Cir. 2006).

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

123

rules. 160 Travel restrictions, as well as inclusion and exclusion zones, also
undermine the ability of families to live together. Furthermore, these rules
generally fail to recognize parents “as part of a broader network of
caregivers,” 161 and in doing so, further infringe on family autonomy and
caregiving cohesion. By violating the right to bodily integrity, the right to parent,
and the “private realm of family life which the state cannot enter,”162 these rights
restrictions appear to be the “price of pleasure.”163
Third, non-carceral punishments often restrict people’s ability to make
decisions about their own bodies. For example, mandated drug, alcohol, and
mental health treatment, including treatments such as “moral reconation
treatment,”164 are very common, and the failure to participate can be grounds for
removal from the program and potential reincarceration.165 Random drug and
alcohol tests are also customary features of non-carceral punishment.166
Otherwise private medical and mental health records are commonly shared with
treatment providers, law enforcement, and courts. 167
Even seemingly small indignities—such as reporting the use of over-thecounter medication to a probation officer 168—implicate bodily autonomy.
Several programs also have rules related to appearance and dress. 169 In Harris
County, Texas, for example, people visiting their probation officer are prohibited
from wearing “revealing” clothing, or clothing in “poor taste” including “halters,
short shorts, sagging pants, pajamas, house shoes, swimsuits, low cut revealing
shirts/blouses, [or] clothing with vulgar language.”170
Finally, restrictions on people’s ability to make decisions about their
employment also raise autonomy concerns. The vast majority of non-carceral
punishment programs include some sort of restriction on employment, including
the need to obtain permission or provide notice before people change jobs,
requiring approval for work schedules, and limitations on work hours, or the type
of work people can do.171 These restrictions, in addition to the already existing
challenge of finding employment with a criminal record, make it difficult to
maintain financial stability and cover court-imposed fees and restitution. 172
160. Weisburd, Carceral Control, supra note 53, at 19–20.
161. Melissa Murray, The Networked Family: Reframing the Legal Understanding of Caregiving
and Caregivers, 94 VA. L. REV. 385, 387 (2008).
162. Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
163. Cortney E. Lollar, Criminalizing (Poor) Fatherhood, 70 ALA. L. REV. 125, 164 (2018).
164. See e.g., Bexar County, Texas, Mental Health Court Rules (on file with author).
165. Weisburd, Carceral Control, supra note 53, at 16.
166. Id. at 15.
167. Id. at 16.
168. See Montgomery Co., Penn. Rules governing Monitoring, 2021 (on file with author).
169. Weisburd, Carceral Control, supra note 53, at 20.
170. Id.
171. Id. at 21.
172. See Anna VanCleave, Brian Highsmith, Judith Resnik, Jeff Selbin & Lisa Foster, Money
and Punishment, Circa 2020, Arthur Liman Ctr. for Pub. Int. Law, Fines & Fees Just. Ctr. & Policy
Advoc. Clinic at U.C. Berkeley Sch. of Law (2020) (describing fees); A Better Path Forward for

Electronic copy available at: https://ssrn.com/abstract=4424954

124

CALIFORNIA LAW REVIEW

[Vol. 111:101

C. Cumulative Impact of Rights Violations
Although often heralded as “decarcerative” by progressives and
conservatives alike, non-carceral punishments risk reinforcing the precise racial
and economic inequities that decarceration efforts seek to address. Almost all
non-carceral punishment “restricts liberty, limits privacy, disrupts family
relationships, and jeopardizes financial security.”173 As such, the erasure of
rights furthers the racial and economic subordination endemic to the carceral
state. In addressing the impact of electronic ankle monitoring, for example,
Professor Chaz Arnett exposed the extent to which monitoring “entrench[es] a
marginalized second-class citizenship.” 174 Left unchecked, the rights restrictions
associated with non-carceral punishments facilitate legalized and
institutionalized dehumanization,175 or what Professor Khiara Bridges terms
“informal disenfranchisement,” which refers to the “process by which a group
has been formally bestowed with a right is stripped of that very right by
techniques that the Court has held to be consistent with the Constitution.” 176
While institutional anti-Black racism has always featured prominently in
the functioning of the criminal legal system, oppression along other intersecting
axes, such as gender, age, disability, immigration status, gender identity, sexual
orientation, and housing status are also reinforced through the rights
infringement. 177 Non-carceral punishments often operate as “reformist reforms”
that reinforce more visibly racialized subordination and social
marginalization. 178 Thanks to the efforts of activists, community organizers,
researchers, and reporters, there is now a deeper understanding of the impact of
rights infringements. 179

Criminal Justice, Brookings-AEI Working Group, at 71 (Apr. 24, 2021) (describing the challenge of
finding employment after release from prison).
173. Kilgore et al., supra note 16.
174. Arnett, supra note 15, at 653.
175. See DAYNA BOWEN MATTHEW, JUST HEALTH (2022).
176. KHIARA M. BRIDGES, THE POVERTY OF PRIVACY RIGHTS 13 (2017) (emphasis omitted).
177. See Kimberlé W. Crenshaw, From Private Violence to Mass Incarceration: Thinking
Intersectionally About Women, Race, and Social Control, 59 UCLA L. REV. 1418, 1435 (2012); Liat
Ben-Moshe, The State of (Intersectional Critique of) State Violence, 46 WSQ: WOMEN’S STUD. Q. 306,
306 (2018); I. India Thusi, Harm, Sex, and Consequences, 2019 UTAH L. REV. 159, 183–84 (2019);
Ifeoma Ajunwa, The Modern Day Scarlet Letter, 83 FORDHAM L. REV. 2999, 3002 (2015).
178. RUTH WILSON GILMORE, GOLDEN GULAG: PRISONS, SURPLUS, AND OPPOSITION IN
GLOBALIZING CALIFORNIA 242 (2007).
179. See The Challenging E-Carceration Project, CHALLENGING E-CARCERATION (last visited
Dec. 4, 2021), https://www.challengingecarceration.org/ [https://perma.cc/66GL-2QSY]; Eric Borsuk,
Inside the Absurd Limbo of a Post-Prison Halfway House, VICE (Feb. 9, 2015); Listen to the Podcast
‘Document: Supervision’, Podcast, NEW HAMPSHIRE PUBLIC RADIO, (Apr. 13, 2021),
https://www.nhpr.org/podcasts/2021-04-13/listen-to-the-podcast-document-supervision
[https://perma.cc/E6V2-7UX2]; Chicago Rapper, Comedian Shares His Experience On Electronic
Monitor, NPR (Apr. 15, 2021), https://will.illinois.edu/21stshow/story/mohawk-johnson-house-arrestelectronic-monitoring [https://perma.cc/W86D-KWLF]; Sandra Susan Smith and Cierra Robson,
Between a Rock and a Hard Place: The Social Costs of Pretrial Electronic Monitoring in San Francisco,
Harvard Kennedy School, Faculty Research Working Paper Series, September 2022.

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

125

In many respects, the various forms of non-carceral punishment mimic,
even if they do not replicate, “the violence inherent in the relationship between
the state and the physically incarcerated individual.”180 The deployment of noncarceral punishments reflects the ultimate “governing through crime.” 181 The
restrictive nature of non-carceral punishment may be even harsher than prison in
some circumstances. Despite the challenge of obtaining a job or housing with a
criminal record, or while wearing a visible ankle monitor, people subject to noncarceral punishment are often ordered to obtain a job, seek medical care, and find
housing, all while complying with a myriad of mandated treatment programs and
other requirements. 182 The way that non-carceral punishment expects people to
do more with less may explain why some people prefer short terms of
incarceration over more lengthy non-carceral punishments. 183
Rights infringements cause both individual and collective harm. On an
individual level, losing the right to move, parent, travel, speak freely, live,
socialize with loved ones, or control one’s own body and home, undermines
dignity and personal autonomy. The near-constant surveillance and limited
privacy afforded to those subject to non-carceral punishment trigger related
social and emotional harms. 184 As one teenager on an electric monitor explained,
she could not hide the ankle monitor and the gaze of her teachers and classmates
got to her: “[y]ou’re trying to move on with your life, but you have this black
box around your ankle.” 185
Privacy scholars have long warned that government surveillance, as well as
surveillance by private companies, chills civic engagement and civil liberties,
and strips people of personal agency, autonomy, and voice.186 The lack of
privacy associated with non-carceral punishment also reinforces the myriad
ways that informational and intimate privacy primarily belongs to people not
subject to non-carceral punishments.187
180. Erin Murphy, Paradigms of Restraint, 57 DUKE L.J. 1321, 1396 (2008).
181. See generally JONATHAN SIMON, GOVERNING THROUGH CRIME: HOW THE WAR ON
CRIME TRANSFORMED AMERICAN DEMOCRACY AND CREATED A CULTURE OF FEAR (2007).
182. SCHENWAR, supra note 15, at 15. For a vivid description of the restrictive nature of
transitional programs, see Ocen, supra note 49.
183. See Klingele, supra note 56 at 1059 & n.188; Eric Wodahl et. al., Offender Perceptions of
Graduated Sanctions, CRIME & DELINQUENCY, 1185–1210 (2013); Peter Wood & Harold Grasmick,
Toward the Development of Punishment Equivalencies: Male and Female Inmates Rate the Severity of
Alternative Sanctions Compared to Prison, JUSTICE QUARTERLY (1999).
184. See Weisburd, Punitive Surveillance, supra note 2, at 14-37; Weisburd, Sentenced to
Surveillance, supra note 74, at 757.
185. SCHENWAR, supra note 15, at 38.
186. See, e.g., Danielle Keats Citron & Daniel J. Solove, Privacy Harms, 102 B.U. L. REV. 793,
845 (2022); Mary Anne Franks, Democratic Surveillance, 30 HARV. J.L. & TECH. 425, 441 (2017); Neil
M. Richards, The Dangers of Surveillance, 126 HARV. L. REV. 1934, 1935 (2013); Julie E. Cohen,
Examined Lives: Informational Privacy and the Subject As Object, 52 STAN. L. REV. 1373, 1423 (2000).
187. See, e.g., KHIARA M. BRIDGES, THE POVERTY OF PRIVACY RIGHTS 16, 89 (2017) (“In
theory, the contracted Fourth Amendment fails to protect the privacy of both rich and poor alike.
However, the Fourth Amendment’s contraction is simply a much more relevant fact for poor
individuals.”); I. Bennett Capers, Race, Policing, and Technology, 95 N.C. L. REV. 1241, 1285 (2017)

Electronic copy available at: https://ssrn.com/abstract=4424954

126

CALIFORNIA LAW REVIEW

[Vol. 111:101

The collective harm is also significant. The erasure of rights impacts not
just the person subject to carceral control, but also families and communities.188
For example, conditions that restrict parent-child relationships or ban contact
with people with criminal records break families apart and “effectively cut a
supervisee off from large swaths of his entire community.” 189 Relatedly, for
people subject to non-carceral punishment, the “home is opened up as never
before” 190 and exposes entire families and homes—the paradigmatic private
place—to carceral surveillance. 191
D. Structural Features that Facilitate Punishment Exemption
Punishment exemption has flourished in part because of courts’ historically
deferential approach to evaluating rights restrictions, discussed infra. The failure
of courts to engage—much less address—punishment exemption also stems
from several structural features of non-carceral punishment; features that have
the effect of shielding punishment from judicial scrutiny. As a result, courts have
been able to avoid resolving the constitutionality of punishment exemption.
1. Barriers to Legal Challenges
Efforts to limit litigation have made legal challenges to non-carceral
punishment virtually impossible. 192 Many rights-stripping punishments exist—
and expand—because people subject to non-carceral punishments, like people in
prison, are deprived of the resources necessary to bring effective legal
challenges.193 Factors such as the lack of access to counsel, the difficulty of
obtaining evidence, the challenges of pro se litigation, the inaccessibility of civil
trial courts, and qualified immunity make constitutional challenges difficult. 194
There are also few opportunities to meaningfully object to the rightsrestricting features of non-carceral punishment. Because non-carceral

(“privacy has never been distributed equally.”); SCOTT SKINNER-THOMPSON, PRIVACY AT THE
MARGINS 16 (2021).
188. See Doherty, supra note 51; Tonja Jacobi et. al., supra note 59; Arnett, supra note 15, at
644–718; Weisburd, Punitive Surveillance, supra note 2; James Kilgore, Repackaging Mass
(June
6,
2014),
Incarceration,
COUNTERPUNCH
https://www.counterpunch.org/2014/06/06/repackaging-mass-incarceration/ [https://perma.cc/94NLQ9MH]; SCHENWAR, supra note 15.
189. Karteron, supra note 59, at 652.
190. R. Corbett & Gary T. Marx, Critique: No Soul in the New Machine: Technofallacies in the
Electronic Monitoring Movement, 8 JUST. Q. 399, 401 (1991).
191. In related work, I draw on my empirical research on non-carceral punishments to expose the
various ways the carceral state extends into, and transforms, the home. See Weisburd, The Carceral
Home (forthcoming Boston Univ. L. Rev. )(on file with author).
192. Aaron Littman, Free-World Law Behind Bars, 131 YALE L. J. 1385, 1392–94(2022).
193. See id. at 1434; David M. Shapiro, Lenient in Theory, Dumb in Fact: Prison, Speech, and
Scrutiny, 84 GEO. WASH. L. REV. 972, 1005 (2016).
194. See Littman, Free-World Law, supra note 192, at 1447; see also Anna Carpenter, Colleen
Shanahan, Jessica Steinberg & Alyx Mark, Judges in Lawyerless Courts, 110 GEO L. J. 509, 513–15
(2022).

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

127

punishment is often presented as an alternative to incarceration, there is no
obvious opportunity to challenge the sanction and the accused person’s
bargaining power is weak. 195 In the context of supervised release, people
convicted of crimes “will accept nearly any arrangement as long as it provides
them the opportunity to avoid going to prison.” 196 When the contours of noncarceral punishment are determined by third parties, discussed infra, there is
virtually no way to challenge the rights restrictions short of a lawsuit.197 These
barriers to legal challenges essentially immunize the rights-stripping nature of
punishment from meaningful scrutiny. Put differently, punishment exemption
has flourished in part because challenges to it are far and few between.
2. Delegation to Third Parties
The delegation of non-carceral punishment to third-party entities, be it
private companies, nonprofits, or government agencies, also explains the lack of
regulatory and constitutional protections.198 Although courts set probation
conditions, it is more often parole boards, treatment centers, specialty courts,
government agents, and private companies that determine the precise contours
of non-carceral punishment.199 These entities, not courts, are responsible for rule
making, enforcement, and sanctions.
The largely unregulated and nontransparent role of private industry
complicates the deference afforded to the third-party entities tasked with
administering non-carceral punishment.200 For example, in some states,
probation services are outsourced to private companies—often the same
companies that own and operate private prisons and electronic ankle
monitoring. 201 While government entities are subject to at least some forms of
judicial and regulatory oversight, albeit minimal, the same cannot be said for
privately-run non-carceral programs. These programs are rarely transparent
about their operation, nor are they required to be as they are not governed by
public records laws.202 With limited involvement of state actors, courts’ ability
to monitor non-carceral programs is further curtailed.

195. See Weisburd, Punitive Surveillance, supra note 2, at 22.
196. Doherty, Testing, supra note 51, at 1704.
197. See Weisburd, Punitive Surveillance, supra note 2, at 117.
198. Id. at 112.
199. See Joan Petersilia, Probation in the United States, 22 CRIME & JUST. 149, 153 (1997);
Collins, supra note 42; Doherty, supra note 51, at 327.
200. Murphy, supra note 180, at 1399–400; Malcolm M. Feeley, Entrepreneurs of Punishment:
How Private Contractors Made and Are Remaking the Modern Criminal Justice System—An Account
of Convict Transportation and Electronic Monitoring, 17 CRIMINOLOGY, CRIM. JUST. L. & SOC’Y 1,
24 (2016).
201. “Set up to Fail:” The Impact of Offender-Funded Private Probation on the Poor, HUMAN
RTS. WATCH (Feb. 20, 2018), https://www.hrw.org/report/2018/02/21/set-fail/impact-offender-fundedprivate-probation-poor# [https://perma.cc/R9FH-LA69]; Weisburd, Punitive Surveillance, supra note 2,
at 122.
202. Weisburd, Punitive Surveillance, supra note 2, at 122.

Electronic copy available at: https://ssrn.com/abstract=4424954

128

CALIFORNIA LAW REVIEW

[Vol. 111:101

The interests and motivations of non-court institutions that oversee noncarceral punishments —such as agencies, nonprofits, and private companies—
are also not the same as those of criminal courts. 203 As Professor Eisha Jain has
noted, “the organizational logic that motivates key institutions is distinct from and often in tension with - the sentencing interests of the state.” 204 Just like the
concern that private prisons prioritize profits over people,205 there is a similar
concern that private companies that market, sell, and operate various forms of
non-carceral punishments are motivated primarily by financial gain.
Delegation is especially troubling in “authoritarian institutions” where
“serious abuses of power and violations of rights are likely to occur” and the
political process is unlikely to provide any meaningful protections. 206 As Justice
Brennan warned in a dissent pertaining to restrictions on religion in prison, “we
should be especially wary of expansive delegations of power to those who wield
it on the margins of society. Prisons are too often shielded from public view;
there is no need to make them virtually invisible.” 207 The concern about
expansive delegation applies to carceral institutions that exist outside of prison
as well. Like barriers to legal challenges, this delegation has the net effect of
judicial avoidance: courts need not resolve, much less address, punishment
exemption if the issue is not before them.
3. Lack of Regulatory Protections
The operation and management of both carceral and non-carceral
punishments are often beyond the reach of not just court oversight, but other
regulatory regimes and agencies that oversee certain industries, like OSHA or
the FDA. In the prison setting, services related to food, medical care, and
telecommunications, for example, often evade the regulatory oversight that
would otherwise apply outside of prison. 208 The same concerns extend to noncarceral punishments, where halfway houses, electronic monitors, and mandated

203. Eric Berger, Individual Rights, Judicial Deference, and Administrative Law Norms
in Constitutional Decision Making, 91 B.U. L. REV. 2029, 2094 (2011).
204. Eisha Jain, Capitalizing on Criminal Justice, 67 DUKE L.J. 1381, 1385 (2018).
205. See Timothy Williams, Inside a Private Prison: Blood, Suicide and Poorly Paid Guards,
NY TIMES (Apr. 3, 2018) https://www.nytimes.com/2018/04/03/us/mississippi-private-prisonabuse.html [https://perma.cc/N3RN-TNSL].
206. Erwin Chemerinsky, The Constitution in Authoritarian Institutions, 32 SUFFOLK U. L. REV.
441, 458 (1999); see also Sharon Dolovich, Forms of Deference in Prison Law, 24 FED. SENT. R. 245,
246 (2012) (documenting the expansive judicial deference afforded to prisons and their officials);
Keramet Reiter, Supermax Administration and the Eighth Amendment: Deference, Discretion, and
Double Bunking, 1986-2010, 5 UC IRVINE L. REV. 89, 103 (2015) (writing about the trend of “persistent
judicial deference to the claims and assertions of prison administrators in the context of prison conditions
challenges in and out of supermaxes.”); Daniel Solove, The Darkest Domain: Deference, Judicial
Review, and the Bill of Rights, 84 IOWA L. REV. 941, 1014 (1999) (“Although the deference principle
hovers over constitutional jurisprudence, it is explicitly invoked and practiced in a particular group of
cases involving a common set of contexts[,]” including prison).
207. O’Lone v. Estate of Shabazz, 482 U.S. 342, 358 (1987) (Brennan, J., dissenting).
208. See Littman, Free-World Law, supra note 192.

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

129

treatment programs are also under- or un-regulated. 209 This is not an accident.
As is true with prisons, the failure of all branches of government to regulate
carceral institutions—both prisons and punishment outside of prison— reflects
a “palpable hostility and contempt” towards people subjected to carceral
control.210 As a result, people subject to carceral control—be it in prison or not—
are left in a “deregulatory state of exception.” 211
The private “alternatives to incarceration” industry is especially underregulated. There are no regulations, for example, governing the production and
operation of electronic ankle monitors or SCRAM devices, despite the fact that
people wear these devices 24/7 on their bodies, and that the devices sometimes
cause physical injuries.212 Likewise, as journalists have pointed out, state and
federal regulators routinely ignore halfway houses and rehabilitation centers to
the detriment of people in the programs. 213 The exorbitant fees for various
“alternatives,” combined with the profit motives of private corrections
entrepreneurs, also raise concerns about potential violations of federal antitrust
and antimonopoly laws. 214
In short, there is no meaningful accountability when the operation of noncarceral punishment is fully delegated to private companies or third parties.
When the state incarcerates someone in prison, the state is—in theory—
responsible for the wellbeing, health, and safety of that person. 215 The same
cannot be said of non-carceral punishments, where the wellbeing of participants
rests entirely with third parties and private companies. The lack of regulatory
protection, and the distance between courts and the operation of these
punishments, also helps explain why punishment exemption has escaped judicial
review.
II.
THE CASE AGAINST PUNISHMENT EXEMPTION
Having established the rights-restricting nature of non-carceral
punishment, this Part makes the case that there is no doctrinal basis to exempt
rights-restricting punishments from traditional constitutional review that would
otherwise apply outside of the punishment context. The case against punishment
209. See Appleman, supra note 3.
210. Sharon Dolovich, The Failed Regulation and Oversight of American Prisons, 17 ANN. REV.
OF CRIMINOLOGY 22, 155 (2022).
211. Littman, Free-World Law, supra note 192, at 5.
212. See Dukmasova, supra note 87.
213. See, e.g., “American Rehab” and the Dark History of Rehabilitative Treatment, NPR (July
9, 2020, 2:33 PM), https://www.npr.org/2020/07/09/889415007/american-rehab-and-the-dark-historyof-rehabilitative-treatment [https://perma.cc/C283-9E6X].
214. Littman, Free-World Law, supra note 192, at 29. See also I. Bennett Capers & Gregory Day,
Race-ing Antitrust, 121 MICH. L. REV. 1, 14 (2023) (“Prison markets are notoriously anticompetitive
because states generate revenue by outsourcing carceral markets to private firms with the promise of
monopolistic control,”).
215. Murphy, supra note 180, at 1400.

Electronic copy available at: https://ssrn.com/abstract=4424954

130

CALIFORNIA LAW REVIEW

[Vol. 111:101

exemption is most vivid in the context of non-carceral punishment, but many of
the reasons to reject punishment exemption apply to prison sentences as well.
As a threshold matter, the absence of clear doctrinal support for punishment
exemption stems, at least in part, from a profound disagreement about the legal
origins of liberty. In a doctrinal tug-of-war, Justices Stevens, Brennan, and
Marshall generally viewed liberty as an unalienable right which is not easily
extinguishable. Just as an incarcerated person “[does] not shed all constitutional
rights at the prison gate,”216 neither does a person subject to non-carceral
punishment. In contrast, Justices White, Rehnquist, and Thomas viewed liberty
as being rightly extinguished by incarceration, and to the extent that liberty
interests remain, they are derived from federal or state law creating
entitlement. 217 This approach is consistent with the concept of departmentalism,
in which ultimate authority in constitutional interpretation resides with “the
people themselves.”218
This debate helps explain why no court has offered a sound explanation or
justification for punishment exemption. Instead, most courts examining noncarceral punishments either assume that no constitutional scrutiny applies or
apply the “reasonably related” standard—but neither approach explains why
traditional constitutional scrutiny does not apply. Although Justices Thomas and
Scalia stated in a dissent that the Court has consistently refused to apply strict
scrutiny to prison sentences, 219 and some state courts have explicitly refused to
apply strict scrutiny to the deprivation of rights associated with punishment,220
there is no solid doctrinal explanation, much less justification, for this position.
This Part exposes these doctrinal infirmities.
A. No General “Punishment Exception” to the Constitution
This Article’s central claim is that a criminal conviction does not give the
state license to impose rights deprivations as punishment, so long as such
deprivations are not cruel and unusual. As Justice Stevens warned in his dissent
in Samson, there is no history of courts imposing the deprivation of Fourth
Amendment rights as a “punitive measure” 221 and as such, parole search

216. Sandin v. Conner, 515 U.S. 472, 486 (1995).
217. Judith Resnik, Punishment in Prison: Constituting the “Normal” and the “Atypical” in
Solitary and Other Forms of Confinement, 115 NW. U. L. REV. 45, 108-10 (2020).
218. LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND
JUDICIAL REVIEW 201 (2004).
219. Foucha v. Louisiana, 504 U.S. 71, 118 (1992) (Thomas, J., dissenting).
220. See, e.g., Oakley, 629 N.W.2d at 207 (refusing to apply strict scrutiny to an anti-procreation
condition of probation); State v. Talty, 814 N.E.2d 1201, 1209 (Ohio 2004) (same); 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); In re Winton, 474 P.3d 532, 535 (Wash. 2020) (refusing to apply strict scrutiny
to a condition of release that limited travel).
221. See Samson v. California, 547 U.S. 843, 864 (2006); infra Part II. C.

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

131

conditions are not immune from close constitutional scrutiny.222 This warning
applies equally to all forms of punishment and is consistent with prior Supreme
Court proclamations that there is “no iron curtain drawn between the
Constitution and the prisons of this country.” 223 There is also no such curtain
between the Constitution and non-carceral punishments.
It follows that there is no textual support for punishment to escape
traditional constitutional rules that would otherwise apply. Specifically, there is
no suggestion, much less clear statement, within the Constitution that
punishments are exempt from normal levels of constitutional scrutiny. In fact,
the Framers used clear categorical language when addressing which specific
rights could be infringed upon or circumscribed and why. The only two rights
and privileges singled out by the Constitution’s drafters as capable of being
legally abridged as punishment are the right to vote and the right to be free from
slavery and involuntary servitude. 224 Section Two of the Fourteenth Amendment
provides that the right to vote may be “abridged” upon “participation in rebellion,
or other crime,” 225 and the Thirteenth Amendment prohibits slavery and
involuntary servitude “except as a punishment for crime.”226
Extensive criticism notwithstanding, exploitative prison labor and felony
disenfranchisement have been upheld as legally permissible forms of
punishment. 227 To be sure, these provisions are rightly questioned and
challenged, 228 and I agree with scholars and policy makers calling for their

222. A handful of scholars have suggested that probation conditions be subject to more
limitations, but the doctrine has yet to change. See Andrew Horwitz, Coercion, Pop-Psychology, and
Judicial Moralizing: Some Proposals for Curbing Judicial Abuse of Probation Conditions, 57 WASH.
& LEE L. REV. 75, 161 (2000); 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).
223. Wolff v. McDonnell, 418 U.S. 539, 555–56 (1974).
224. U.S. CONST. amend. XIII, § 1; U.S. CONST. amend. XIV, § 2.
225. Richardson v. Ramirez, 418 U.S. 24, 42 (1974) (upholding permanent disenfranchisement
of people convicted of crimes).
226. U.S. CONST. amend. XIII, § 1.
227. Beth A. Colgan, Wealth-Based Penal Disenfranchisement, 72 VAND. L. REV. 55, 126–27
(2019); Michael Morse, The Future of Felon Disenfranchisement Reform: Evidence from the Campaign
to Restore Voting Rights in Florida, 109 CALIF. L. REV. 1143, 1144 (2021); Kamal Ghali, No Slavery
Except as a Punishment for Crime: The Punishment Clause and Sexual Slavery, 55 UCLA L. REV. 607,
628 (2008); James Gray Pope, Mass Incarceration, Convict Leasing, and the Thirteenth Amendment: A
Revisionist Account, 94 N.Y.U. L. Rev. 1465, 1533 (2019); Wafa Junaid, Forced Prison Labor:
Punishment for a Crime?, 116 NW. L. REV. 1099, 1122–26 (2022); ACLU & UNIV. OF CHICAGO LAW
SCHOOL GLOBAL HUMAN RIGHTS CLINIC, CAPTIVE LABOR: EXPLOITATION OF INCARCERATED
WORKERS, at 48 (2022) https://www.aclu.org/sites/default/files/field_document/2022-06-15captivelaborresearchreport.pdf.
228. See, e.g., Michele Goodwin, The Thirteenth Amendment: Modern Slavery, Capitalism, and
Mass Incarceration, 104 CORNELL L. REV. 899, 908 (2019); Eric J. Miller, Foundering Democracy:
Felony Disenfranchisement in the American Tradition of Voter Exclusion, 19 NAT’L BLACK L.J. 32, 33
(2005); Wafa Junaid, Forced Prison Labor: Punishment for A Crime?, 116 N.W. U. L. REV. 1099, 1134
(2022).

Electronic copy available at: https://ssrn.com/abstract=4424954

132

CALIFORNIA LAW REVIEW

[Vol. 111:101

abolition.229 Yet under basic canons of construction, these two provisions
undermine the idea that there is an implicit or general punishment exception to
the Constitution. 230 The failure of the drafters to use limiting language elsewhere
suggests that a conviction cannot be the sole grounds to deny people rights.
Some might argue that if the text of the Thirteenth Amendment in fact
allows involuntary servitude and slavery as punishment, it follows that any
rights-deprivation as punishment is permitted under the Constitution, since
“lesser” punishments are less rights-depriving than enslavement. Yet even
accepting the textual support for such a position—a reading that scholars
debate 231—current punishment jurisprudence rejects slavery and “civil deaths”
as punishment for a crime, addressed infra.
To be sure, the Thirteenth and Fourteenth Amendments are arguably
distinguishable from other constitutional provisions because they were part of
the Reconstruction compromise. As addressed more thoroughly by other
scholars, the Thirteenth Amendment both ended the formal institution of slavery
but also insured the entrenchment of race and class-based hierarchies with
“Black codes,” convict leasing, and other mechanisms that perpetuated slavery
through the Punishment Clause.232 Yet, if we take at face value the general view
of courts that the punishment clause “strips convicted persons of Thirteenth
Amendment protection,” 233 it follows that there is no other general punishment
exception beyond the punishment clause.
Moreover, the elimination of rights for people subject to carceral control
reflects the “badges and incidents of slavery” 234 that the Thirteenth Amendment
forbids.235 As discussed in greater detail in Part IV, infra, the concerns that led

229. See, e.g., Dorothy E. Roberts, Foreword: Abolition Constitutionalism, 133 HARV. L. REV.
1, 105 (2019); McLeod, Prison Abolition, supra note 33, at 1196-97; Brakkton Booker, Democrats Push
‘Abolition Amendment’ to Fully Erase Slavery from U.S. Constitution, NPR (Dec. 3, 2020),
https://www.npr.org/2020/12/03/942413221/democrats-push-abolition-amendment-to-fully-eraseslavery-from-u-s-constitution [https://perma.cc/KD82-3K5H]; Tennessee Senate Oks Bid to Remove
‘Slavery’ as Punishment, AP NEWS (Mar. 15, 2021), https://apnews.com/article/tennessee-us-newsslavery-bbfc5729dac6dd769c9110c284993371 [https://perma.cc/N72V-LGJ5].
230. The view that omissions are deliberate reflects the expressio unius canon of statutory
interpretation, meaning “expressing one item of [an] associated group or series excludes another left
unmentioned.” United States v. Vonn, 535 U.S. 55, 65 (2002).
231. Compare Raja Raghunath, A Promise the Nation Cannot Keep: What Prevents the
Application of the Thirteenth Amendment in Prison?, 18 WM. & MARY BILL RTS. J. 395, 439 (2009)
(arguing that practice of forced labor cannot “rightfully be called punishment, for the purposes of
escaping the Thirteenth Amendment’s prohibitions, simply by virtue of it occurring in prison”), with
Theodore R. Johnson, Thank God and the GOP for the 13th Amendment, NATIONAL REVIEW (Nov. 19,
2015),
https://www.nationalreview.com/2015/11/gop-abolition-slavery-150-anniversary/
[https://perma.cc/F36U-GYE6 ] (arguing for a more expansive reading of the Thirteenth Amendment
that permits involuntary servitude as criminal punishment, so long as it is not cruel and unusual).
232. See, e.g., SCHENWAR, supra note 15, at 35; Goodwin, supra note 228 at 935; Pope, supra
note 227, at 1534.
233. Pope, supra note 227, at 1534.
234. Jones v. Mayer, 392 U.S. 409, 439 (1968).
235. Brandon Hasbrouck, The Antiracist Constitution, 102 B.U. L. REV. 87, 145 (2022).

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

133

to the passage of the Reconstruction Amendments directly undermine exempting
punishment from traditional constitutional protections. In particular, the brutal
practices of separating enslaved families and the inhuman treatment of enslaved
people motivated the passage of the Reconstruction Amendments. 236 Yet today,
Professor Brandon Hasbrouck explains, liberty restrictions related to punishment
strip people of “fundamental privileges and immunities of citizenship, including
restrictions on speech, family relations, and legal status—all of which are
textbook examples of badges and incidents of slavery.” 237 For all these reasons,
the Reconstruction Amendments—and in particular the Thirteenth
Amendment—undermine the proposition that punishments are categorically
exempt from traditional constitutional scrutiny.
B. The “Right to Have Rights”
On multiple occasions, the Supreme Court has made clear that the
protections of the Free Exercise Clause, the Due Process Clause, and the Equal
Protection Clause all apply to people subjected to various forms of non-carceral
punishment, 238 and that people in the criminal legal system do not “forfeit all
constitutional protections.”239 Despite this strong categorical language,
punishment exemption persists.
There is no obvious doctrinal support for the argument that punishment or
a conviction alone fully extinguishes the right to have rights. 240 As the Ninth
Circuit noted, being on probation does not “extinguish” Fourth Amendment
rights and a “conditional releasee may lay claim to constitutional relief, just like
any other citizen.”241 There is nothing special about state action in the form of
punishment that exempts it from scrutiny. The rules of constitutional law should
be the same across contexts: the relevant constitutional scrutiny should apply to
all state action, regardless of whether the state action is categorized as
punishment, regulation, or a collateral consequence.242 Focusing on non-carceral
punishments in particular highlights why rights-violating punishment, and

236. Peggy Cooper Davis, The Reconstruction Amendments Matter When Considering Abortion
POST
(May
3,
2022),
Rights,
WASH.
https://www.washingtonpost.com/outlook/2022/05/03/reconstruction-amendments-matter-whenconsidering-abortion-rights/ [https://perma.cc/Y8MK-5RSB].
237. Hasbrouck, supra note 235, at 145–46.
238. See 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.’”) (citation and internal quotations omitted);
Johnson v. California, 543 U.S. 499, 515 (2005) (holding that strict scrutiny standard governed equal
protection challenge of race-based prison segregation).
239. Bell v. Wolfish, 441 U.S. 520, 545 (1979).
240. See Zuckerman supra note 14, at 27.
241. United States v. Kincade, 379 F.3d 813, 835 (9th Cir. 2004).
242. See infra Part III D.

Electronic copy available at: https://ssrn.com/abstract=4424954

134

CALIFORNIA LAW REVIEW

[Vol. 111:101

exempting punishment from traditional constitution review, is not legally
justified.
There are several reasons to subject non-carceral punishment to traditional
levels of constitutional scrutiny. First, simply erasing rights as punishment is a
form of “civil death,” defined as a “form of punishment” that “extinguish[es]
most civil rights of a person convicted of a crime and largely put[s] that person
outside the law’s protection”243 While Civil Death was a common colonial era
punishment, it is no longer accepted. In 1997, the Supreme Court held that “the
ancient common law doctrine of ‘outlawry,’ and . . . ‘civil death,’ . . . could not
be admitted without violating the rudimentary conceptions of the fundamental
rights of the citizen.” 244 Likewise, in 1977, Justice Marshall explained in a
dissent that the Court has repeatedly rejected the view once held by state courts
that “prisoners were regarded as ‘slave(s) of the State,’ having not only forfeited
[their] liberty, but all [their] personal rights . . ..” 245 As Justice Stevens explained
in a separate case:
[I]f the inmate’s protected liberty interests are no greater than the State
chooses to allow, he is really little more than the slave described in the
19th century cases. I think it clear that even the inmate retains an
unalienable interest in liberty at the very minimum the right to be treated
with dignity which the Constitution may never ignore.246
This concern is not limited to prisons and applies equally to non-carceral
punishments as well.
Restrictions on Second Amendment rights have garnered similar concerns
about targeting and eliminating rights for people with criminal convictions.247
For example, before joining the Supreme Court, then-Seventh Circuit judge Amy
Coney Barrett observed in a dissent that “[f]ounding-era legislatures did not strip
felons of the right to bear arms simply because of their status as felons.” 248 As
she explained, history teaches us that “a felony conviction and the loss of all
rights did not necessarily go hand-in-hand.”249 While most Second Amendment
restrictions are categorized as collateral consequences or civil restraints, Justice
Barrett’s position suggests deep skepticism of any firearms restriction (punitive

243. Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass
Conviction, 160 U. PA. L. REV. 1789, 1790 (2012).
244. Hovey v. Elliott, 167 U.S. 409, 444 (1897).
245. Jones v. N. Carolina Prisoners’ Lab. Union, Inc., 433 U.S. 119, 139 (1977) (Marshall, J.,
dissenting) (citing Ruffin v. Commonwealth, 62 Va. 790, 796 (1871)) (modifications in original).
246. Meachum v. Fano, 427 U.S. 215, 233 (1976).
247. For a detailed analysis of the tension between the right to bear arms and criminal laws
limiting gun possession, see Alice Ristroph, The Second Amendment in a Carceral State, 116 NW. U. L.
REV. 203 (2021).
248. Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019), abrogated by New York State Rifle &
Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).
249. Id. at 461.

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

135

or collateral) that is triggered solely by someone’s status as a “felon.” 250 Of
course, there is nothing exceptional about the right to bear arms as compared to
other fundamental rights. In theory, Justice Barrett’s concern extends to all rights
and undermines the legitimacy of punishment exemption generally. At the very
least, it suggests a conflict between the protection afforded to Second
Amendment rights as compared to other rights.
Second, as a doctrinal matter, the loss of rights in prison, or in non-carceral
settings, is most often justified because maintaining the rights would be
inconsistent with the operation of the punishment. But the rights are not taken
away as the punishment itself. As Professor Sherry Colb explains in the context
of prisons, “we do not sufficiently scrutinize the penalty of incarceration as a
deprivation of the fundamental right to be free from physical confinement.” 251
The same can be said of non-carceral punishment. Indeed, scholars have rightly
called for heightened constitutional scrutiny of both punishments and collateral
consequences alike, regardless of their label as punishment or not.252 There is
nothing exceptional about criminal punishments that justifies unique
constitutional treatment. 253
Third, Supreme Court punishment and prison jurisprudence offers no clear
categorical rule that exempts rights-violating punishments from traditional
constitutional review. Instead, the caselaw reflects ongoing tension about what
scrutiny is due. 254 On one hand, the Court appears to have rejected the
applicability of strict scrutiny to punishment. In Chapman v. United States, the
Court entertained a Substantive due process challenge to a mandatory five-year
sentence that was based on the weight of the container of drugs plus the drugs,
as compared to the weight of the drugs without the container. The Court rejected
the challenge and upheld the sentence under a rational basis review. 255 Notably,
the Court did not explain why it applied rational basis review and not strict
scrutiny. In one short paragraph, the Court simply explained that once a person
is convicted of a crime, courts may impose whatever punishment is authorized

250. See also United States v. Rahimi, No. 21-11001, 2023 WL 1459240, *179 (5th Cir. Feb. 2,
2023) (finding that federal statute criminalizing gun possession for someone subject to a domestic
violence restraining order violates the Second Amendment).
251. Colb, supra note 14, at 783; see also Zuckerman supra note 14, at 29 (connecting the due
process clause to incarceration as a deprivation of bodily autonomy).
252. See Sandra G. Mayson, Collateral Consequences and the Preventive State, 91 NOTRE DAME
L. REV. 301, 306-09 (2015); Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era
of Mass Conviction, 160 U. PA. L. REV. 1789, 1807 (2012); Zuckerman, supra note 14, at 30.
253. Sandra G. Mayson, The Concept of Criminal Law, 14 CRIM. L. & PHIL. 447, 448 (2020)
(explaining that there is no clear consensus about what differentiates criminal law from other areas of
law).
254. See Zuckerman, supra note 14, at 305 (noting that the Court has “never fully explained why
incarceration does not trigger strict scrutiny.”)
255. Chapman v. United States, 500 U.S. 453, 467 (1991).

Electronic copy available at: https://ssrn.com/abstract=4424954

136

CALIFORNIA LAW REVIEW

[Vol. 111:101

by statute so long as it is not cruel and unusual and not irrational under rational
basis review. 256
On the other hand, Chapman’s legacy is as uncertain as it is unclear. In the
years after Chapman, the Court expressed concern that any institutionalization
of an adult “triggers heightened, substantive due process scrutiny” 257 and
requires a “‘sufficiently compelling’ government interest.” 258 To be sure, these
concerns appear in the context of civil commitment—not criminal incarceration.
For example, in striking down the ongoing civil commitment of an insanity
acquittee, the majority in Foucha v. Louisiana distinguished civil commitment
from criminal incarceration. 259 Because the commitment was civil and not
criminal, the majority reasoned, substantive due process protections applied.
Yet the difference in settings does not, without more, explain why
punishment should be treated differently for purposes of substantive due process
analysis. 260 Indeed, in his dissent in Foucha, Justice Thomas worried that the
majority’s focus on criminal convictions was just a question of semantics. As he
explained, “I am not sure that [a conviction] deserves talismanic significance,”
because “[i]t is surely rather odd to have rules of federal constitutional law turn
entirely upon the label chosen by a State.”261 In short, the civil-criminal
distinction is of limited use since substantive due process “protects bodily
liberty, full stop, and one’s bodily liberty is equally constrained regardless of
whether the judicial order doing the work is styled as a civil or a criminal
judgment.”262
In the Equal Protection context, the Supreme Court has also applied strict
scrutiny to prisons, suggesting that Chapman is not the final word on the legality
of exempting punishment from traditional standards of constitutional review. In
evaluating a section 1983 Equal Protection challenge to prison policies that
discriminated based on race, the Court explicitly held that strict scrutiny and not
the “reasonably related” standard governed the challenge. 263
To be sure, there is debate in the law and literature about what precise
constitutional review is due, 264 but at a minimum, these cases all reveal that
criminal punishment—both those in prison and out—is not per se exempt from

256. See id.
257. Reno v. Flores, 507 U.S. 292, 314 (1993) (O’Connor, J., concurring).
258. Id. at 314.
259. Foucha, 504 U.S. at 80.
260. See Dudani, supra note 12, at 2133.
261. Id. at 118 n.13 (Thomas, J., dissenting). “Concededly, Justice Thomas’s objection was
limited”—he “believed that a person’s criminal conduct--irrespective of whether she was convicted or
acquitted as insane--extinguished her right against unwarranted confinement.” Dudani, supra note 12,
at 2133 (2020).
262. Zuckerman, supra note 14, at 32.
263. Johnson v. California, 543 U.S., 499, 500 (2005).
264. See e.g., Zuckerman supra note 14, at 26-27 (concluding that, although incorrect, the Court
has articulated rational basis as the appropriate standard of review of incarceration); Dudani, supra note
12 (arguing that strict scrutiny is the appropriate standard to challenge incarceration).

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

137

constitutional scrutiny and that there is no obvious reason not to apply traditional
constitutional scrutiny to punishments.265
Reading the cases this way is not novel. Justices Stevens and Brennan also
believed that the traditional levels of constitutional scrutiny that apply to any
state action should apply to state action in prison. In a dissent related to a freedom
of association claim, Justice Marshall urged the Court to view restrictions on
First Amendment activities the same for people in prison and outside.266 In a
dissent regarding restrictions of religious practices in prison, Justice Brennan
likewise took the position that such restrictions should be subject to a “strict
standard of review.” 267
These points, however, raise a follow-up question: If traditional
constitutional scrutiny applies to non-carceral punishment, why have courts
avoided doing just that? In 2001, the Wisconsin Supreme Court offered a
possible explanation. In upholding an anti-procreation probation condition, the
court in State v. Oakley noted, without citation to authority, that neither probation
conditions nor prison regulations are subject to strict scrutiny review. 268 The
court explained its reasoning:
If probation conditions were subject to strict scrutiny, it would
necessarily follow that the more severe punitive sanction of
incarceration, which deprives an individual of the right to be free from
physical restraint and infringes upon various other fundamental rights,
likewise would be subjected to strict scrutiny analysis . . . [This]
position is either illogical in that it requires strict scrutiny for conditions
of probation that infringe upon fundamental rights but not for the more
restrictive alternative of incarceration, or it is unworkable in that it
demands the State meet the heavy burden of strict scrutiny whenever it
is confronted with someone who has violated the law. 269
Yet this explanation is suspect. It is hardly illogical to suggest that strict
scrutiny applies to both carceral and non-carceral sentences. Both, after all,
involve state action and the deprivation of liberty, just to different degrees.
Likewise, the unworkable explanation seems to suggest, as Justice Brennan
famously put it, a “too much justice” problem. 270 Simply because applying
traditional constitutional scrutiny would be difficult is not, without more, a
sufficient justification to not do so. Perhaps the real reason courts avoid applying
traditional constitutional scrutiny to punishment is that it opens the floodgates to

265. Other examples of the Court applying constitutional law to criminal punishments are
explored infra in section II E.
266. See Jones v. N. Carolina Prisoners’ Lab. Union, Inc., 433 U.S. 119, 141–42 (1977)
(Marshall, J., dissenting) (observing that with respect to First Amendment analysis, “I do not understand
why a different rule should apply simply because prisons are involved”).
267. O’Lone v. Estate of Shabazz, 482 U.S. 342, 357 (1987) (Brennan, J., dissenting).
268. Oakley, 629 N.W.2d at 214.
269. Id. at 207 n.23 (internal citations omitted).
270. McCleskey v. Kemp, 481 U.S. 279, 339 (1987) (Brennan, J., dissenting).

Electronic copy available at: https://ssrn.com/abstract=4424954

138

CALIFORNIA LAW REVIEW

[Vol. 111:101

constitutional challenges and might result in substantially limiting the State’s
ability to punish people with both carceral and non-carceral sanctions. In this
way, courts’ reliance on the consent of people convicted of crimes, as well
deference to agencies and private companies, should be viewed as forms of
judicial avoidance.
To be sure, a small handful of courts reject the idea of punishment
exemption and have instead applied heightened levels of constitutional scrutiny
to non-carceral punishments. For example, then-Judge Sonia Sotomayor
invalidated a supervised release condition that limited a parent’s ability to visit
with his child on the grounds that “the liberty interest at stake is fundamental”
and “a deprivation of that liberty is ‘reasonably necessary’ only if the deprivation
is narrowly tailored to serve a compelling government interest.” 271 A handful of
courts followed suit in the context of family relationships, but they are the
exception and not the norm. 272
Notably, most of the cases that apply strict or heightened scrutiny to noncarceral punishments involve more extreme rights-restrictions, such as
prohibitions on having children, complete internet bans, or penile
plethysmographs.273 Another small group of judges have subjected religious
restrictions and speech restrictions to heightened scrutiny.274 But these cases are
outliers and inexplicably apply heightened scrutiny to some restrictions and strict
scrutiny to others. 275 Nonetheless, these cases—many of them state court
decisions—suggest that rights restrictions imposed as punishment are not
categorically exempt from close constitutional scrutiny.

271. United States v. Myers, 426 F.3d 117, 126 (2d Cir. 2005).
272. See Goings v. Ct. Servs. & Offender Supervision Agency for D.C., 786 F. Supp. 2d 48, 70–
71 (D.D.C. 2011) (applying strict scrutiny to a no contact provision related to a defendant’s ability to
see their children); United States v. Reeves, 591 F.3d 77, 82–83 (2d Cir. 2010) (applying heightened
scrutiny to a supervised release condition requiring a defendant to notify the probation department if he
enters a “significant romantic relationship”); Simants v. State, 329 P.3d 1033, 1039 (Alaska Ct. App.
2014) (applying heightened scrutiny to a probation condition that barred a woman from living with her
own child); Doe v. Lima, 270 F. Supp. 3d 684, 702 (S.D.N.Y. 2017) (applying strict scrutiny to a
condition barring contact with son).
273. See supra notes 93–97; see also United States v. Voelker, 489 F.3d 139, 145 (3d Cir. 2007)
(applying heightened scrutiny to a supervised release condition imposing a “lifetime ban on all computer
equipment and the internet”); United States v. McLaurin, 731 F.3d 258, 261, 263 (2d Cir. 2013)
(applying heightened scrutiny to a five-year supervised release condition imposing subjection to penile
plethysmography examinations at the probation officer’s discretion).
274. See United States v. Hernandez, 209 F. Supp. 3d 542, 544–46 (E.D.N.Y. 2016) (applying
heightened scrutiny to condition prohibiting plaintiff from attending religious services with minors);;
Galindo v. State, 481 P.3d 686, 691, 693 (Alaska Ct. App. 2021) (applying heightened scrutiny to
condition prohibiting participation in a march); Sobell v. Reed, 327 F. Supp. 1294, 1303–05 (S.D.N.Y.
1971); State v. Evans, 796 P.2d 178 (Kan. Ct. App. 1990) (applying strict scrutiny to condition requiring
“attendance at a specific church.”)..
275. Compare Lima, 270 F. Supp. 3d at 702 (applying strict scrutiny) with Galindo, 481 P.3d at
691 (condition must be “narrowly tailored to avoid unnecessary interference with the constitutional right
at issue”) (internal quotations omitted)).

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

139

The vast majority of courts confronted with challenges to non-carceral
punishments, however, either avoid the constitutional questions altogether,
uphold restrictions that “reasonably relate” to a purpose of punishment (a form
of rational basis review), or explicitly refuse to apply traditional constitutional
scrutiny.
C. Prohibition on Punishments that Ruin People & Undermine Dignity
Rights-violating punishments also conflict with both Eighth Amendment
and substantive due process jurisprudence that speak to dignity interests and
personal ruin. While scholars have understandably questioned the continued
viability of both substantive due process and Eighth Amendment challenges to
various forms of punishment, a close reading of recent case law reveals reason
to think otherwise.
In the context of the Eighth Amendment, two recent cases suggest a
prohibition on punishments that ruin people. The Supreme Court’s decisions in
both United States v. Bajakajain and Timbs v. Indiana reflect a recognition that
punishment is not meant to leave a person in a worse condition by depriving
them of basic rights, liberty, and autonomy. Although both cases focus on the
scope of the Eighth Amendment, the decisions aimed to limit “punishment
powers to exploit and undermine individuals . . . to ‘retaliate or chill’ speech, or
otherwise to abuse people.”276 As Professor Judith Resnik explains, Timbs
suggests 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.” 277
The anti-ruination principle can be traced back further than Timbs and
beyond the Eighth Amendment. In rejecting the view that the Eighth Amendment
is the only limit on punishment, Justice Stevens explained that “it remains true
that the ‘restraints and the punishment which a criminal conviction entails do not
place the citizen beyond the ethical tradition that accords respect to the dignity
and intrinsic worth of every individual.’” 278
The rights deprivation associated with non-carceral punishment does
precisely what Professor Resnik warns against: it diminishes a person’s ability
to function physically, mentally, and socially. Instead, as suggested by Justice
Stevens, punishment should preserve certain aspects of a person’s liberty and
dignity. Depriving people in prison of pictures of their loved ones, for example,
“may mark the difference between slavery and humanity” and does not “comport

276. Judith Resnik, (Un)Constitutional Punishments: Eighth Amendment Silos, Penological
Purposes, and People’s “Ruin,” 129 YALE L.J.F. 365, 367–68 (2020).
277. Id. at 408.
278. Overton v. Bazzetta, 539 U.S. 126, 138 (2003) (Stevens, J., concurring).

Electronic copy available at: https://ssrn.com/abstract=4424954

140

CALIFORNIA LAW REVIEW

[Vol. 111:101

with any civilized standard of decency.” 279 Likewise, in the context of the
decades-long California prison condition cases, Judge Thelton Henderson
explained that when prisons deprive people “of a basic necessity of human
existence—indeed, they have crossed into the realm of psychological torture.”280
The same analysis can—and should—apply in the context of non-carceral
punishments.
Both the Eighth Amendment and substantive due process also speak to
dignity interests–interests undermined by many of the rights-restricting noncarceral punishments. In many of the early reproductive health care cases, for
example, the Supreme Court spoke about the Fourteenth Amendment’s liberty
guarantee as respecting personal autonomy, as well as dignity.281 Dignity
interests—as part of substantive due process—appear in a range of cases,
including the right to refuse life-sustaining medical care and the right to privacy
with respect to sex and sexuality.282 To be sure, post Dobbs v. Jackson Women’s
Health Organization, the ongoing viability of these cases is unknown, an issue
addressed infra in Part IV.
The concern with dignity is not limited to the Fourteenth Amendment.
Eighth Amendment jurisprudence also invokes dignity as an organizing principle
by which to evaluate punishment.283 As Justice Brennan famously noted,
“punishment must not be so severe as to be degrading to the dignity of human
beings.” 284 In concluding that handcuffing someone to a hitching post for seven
hours and not letting them use the bathroom violated the Eighth Amendment, the
Court explained that the punishment was “antithetical to human dignity” and
emphasized that “basic concept underlying the Eighth Amendment . . . is nothing
less than the dignity of man.” 285 In that case, the Court found that the prison’s
inability to meet basic human needs is a feature of punishment that undermines
dignity and thus violates the Eighth Amendment. 286 As explored more fully in
related work, punishments that may not amount to torture, and could be justified
as “reasonably related” to rehabilitation or deterrence—for example,
requirements to urinate in front of a state official as part of a drug test or limits
on parenting—could still raise significant dignity concerns. 287

279. Hudson v. Palmer, 468 U.S. 517, 542, 546 (1984).
280. Madrid v. Gomez, 889 F. Supp. 1146, 1264 (N.D. Cal. 1995).
281. See Luke A. Boso, Dignity, Inequality, and Stereotypes, 92 WASH. L. REV. 1119, 1128
(2017); Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under
Casey/Carhart, 117 YALE L.J. 1694 (2008).
282. See, e.g., Lawrence v. Texas, 539 U.S. 558, 567 (2003); Cruzan v. Director, Missouri Dept.
of Health, 497 U.S. 261, 289 (1990); Obergefell v. Hodges, 576 U.S. 644, 663 (2015).
283. Leslie Meltzer Henry, The Jurisprudence of Dignity, 160 U. PA. L. REV. 169, 223 (2011);
JONATHAN SIMON, MASS INCARCERATION ON TRIAL, 165–67 (2014).
284. Furman v. Georgia, 408 U.S. 238, 271 (1972) (Brennan, J., concurring).
285. Hope v. Pelzer, 536 U.S. 730, 738, 745 (2002).
286. Id.at 738.
287. Weisburd, Punitive Surveillance, supra note 2, at 152, 200 (describing how electronic
monitoring undermines basic notions of dignity).

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

141

A historical reading of the Eighth Amendment also supports the proposition
that the right against cruel and unusual punishment means more than the right to
not be tortured. Under the original meaning of “unusual,” punishments were
presumed unjust if they “attempted to replace ‘reasonable’ punishment practices
that had developed over a very long period of time with something that was either
new, foreign, or previously tried and then rejected.” 288 Arguably, some forms of
non-carceral punishments are sufficiently “unusual” so as to justify Eighth
Amendment protection.
D. Reasons to Reject the “Reasonably Related” Standard
Punishment exemption is very much fueled by courts’ deferential approach
to reviewing rights-restricting punishment. 289 Generally, courts either ignore the
rights-stripping nature of punishments or uphold rights-restrictions that
reasonably relate to rehabilitation or public safety. 290 For example, restrictions
that implicate First Amendment rights (such as mandatory participation in AA
or restrictions on movement that implicate the ability to protest or practice
religion) or restrictions on family and social relationships are routinely upheld
under a “reasonably related” justification. 291 A condition requiring a person on
probation to seek permission from his probation officer before “engaging in
sexual relationship[s]” was also upheld as reasonably related to rehabilitation.292
Likewise, at the height of the COVID-19 pandemic, a federal district court judge
ordered that a probationer receive a COVID-19 vaccine on the grounds that it
reasonably related to public safety. 293
This Part takes on the “reasonably related” standard and makes the case that
it does not justify exempting non-carceral punishment from traditional
constitutional scrutiny.

288. John F. Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar
to Cruel Innovation, 102 NW. U. L. REV. 1739, 1745–46 (2008).
289. See Sharon Dolovich, The Coherence of Prison Law, 135 HARV. L. REV. F. 302, 311 (2022)
(stating “it is hard to conceive of a more deferential standard”).
290. See, e.g., United States v. Schave, 186 F.3d 839, 843 (7th Cir.1999) (“[A] court will not
strike down conditions of [supervised] release, even if they implicate fundamental rights, if such
conditions are reasonably related to the ends of rehabilitation and protection of the public from
recidivism.”).
291. See, e.g., United States v. Romig, 933 F.3d 1004 (8th Cir. 2019) (upholding prohibition on
associating with any member of a motorcycle gang did not infringe on freedom of association because
it was reasonably related to the sentencing factors); United States v. Pacheco-Donelson, 893 F.3d 757
(10th Cir. 2018) (same); United States v. Evans, 883 F.3d 1154 (9th Cir. 2018) (same); People v. Lopez,
78 Cal. Rptr. 2d 66 (Cal. Ct. App. 1998) (holding a probation condition prohibiting gang association
was reasonably related to rehabilitation and prevention of future criminality).
292. Krebs v. Schwarz, 568 N.W.2d 26, 28 (Wis. Ct. App. 1997).
293. See Madison Alder, N.Y. Federal Judge Orders Defendant Vaccinated as Bail Condition,
BLOOMBERG L. (Aug 18, 2021, 6:24 PM).

Electronic copy available at: https://ssrn.com/abstract=4424954

142

CALIFORNIA LAW REVIEW

[Vol. 111:101

1. Limitless Limit
The “reasonably related” standard is not random. It migrated from prison
jurisprudence to non-carceral jurisprudence with little adaptation for the
differences between carceral and non-carceral settings. In the prison context,
most rights restrictions are upheld so long as the burdens are “reasonably related
to legitimate penological interests,”294 including rehabilitation and public
safety. 295
This standard, most forcefully articulated in Turner v. Safley, is meant to
be a balancing test between the restrictions on rights on one hand, and the needs
of the prison on the other. In practice, it is a “species of rational basis review”
that is highly deferential to prison officials and creates a “presumption of
constitutionality.”296 As applied in both the context of prisons and non-carceral
punishments, this standard is trans-substantive: this default applies regardless of
the particular right.297 Even when courts emphasize the need to proceed with
caution when punishments strip people of rights, the final analysis is strikingly
similar across all rights and settings: the erasure of rights survives so long as it
is “primarily designed to affect the rehabilitation of the probationer or insure the
protection of the public.” 298
In contrast, courts are much more concerned with the erasure of rights that
occur outside of punishment. For example, in Grady v. North Carolina and
Packingham v. North Carolina, the Supreme Court recognized the rightsrestricting nature of life-time GPS monitoring and internet bans for people
convicted of certain sex offenses. 299 However, the Court’s concerns hinged on
the fact that the restrictions were imposed on people who “already . . . served
their sentence and are no longer subject to the supervision of the criminal justice
system.” 300 Lower courts have likewise declined to apply Grady and
Packingham to people still serving a criminal sentence, reasoning that
restrictions on First and Fourth Amendment rights are more troubling when they
extend “beyond the completion of [the defendant’s] sentence” 301 and that those

294. Turner v. Safley, 482 U.S. 78, 89 (1987).
295. See Sharon Dolovich, Forms of Deference in Prison Law, 24 FED. SENT’G REP. 246, 251
(2012); Resnik, (Un)constitutional Punishments, supra note 276, at 367–68.
296. Sharon Dolovich, The Coherence of Prison Law, 135 HARV. L. REV. F. 302, 311 (2022).
297. See Driver & Kaufman, supra note 12, at 537–38.
298. United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 n.14 (9th Cir. 1975).
299. Grady v. North Carolina, 575 U.S. 306, 310 (2015); Packingham v. North Carolina, 137 S.
Ct. 1730, 1737 (2017).
300. Packingham, 137 S. Ct. at 1737 (striking down on First Amendment grounds an internet ban
for people convicted of certain sex offenses); 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’”).
301. 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); Friedman v. Boucher, 580 F.3d 847, 858 (9th Cir. 2009) (finding
that nonconsensual DNA collection was unreasonable because “Friedman was not on parole. He had

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

143

still subject to state punishment are not afforded the same protections. 302 The
difference in courts’ concern with the deprivation of rights in the punishment
setting as compared to the non-punishment setting is striking and reinforces this
Article’s claim that the right to have rights should depend on the existence of
state action, regardless of the setting.
The most obvious concern with the deferential “reasonably related”
standard is that it imposes no clear outer limit. Rights-restrictions are almost
always justifiable as protecting public safety or furthering rehabilitation. 303 In
his dissent in Turner, Justice Stevens critiqued the reasonably related
justification on these grounds: If the standard is nothing more than a “logical
connection” between the oppressive regulation and any “legitimate penological
concern perceived by a cautious warden, . . . it is virtually meaningless.” 304
This deferential standard is hardly surprising, as it tracks punishment
jurisprudence more broadly. As Professor Sharon Dolovich observes, prison law
is “predictably pro-state, highly deferential to prison officials’ decision-making,
and largely insensitive to the harms people experience while incarcerated.”305
The same concern extends to the deference afforded to non-carceral punishments
as well. Yet despite uniform scholarly criticism of the Turner standard, most
courts continue to adopt this approach in evaluating rights-deprivations in
prisons and for people subject to various forms of court supervision. 306
2. Legally Unsound
The problem with the “reasonably related” standard is not just its
limitlessness, but also its legal insufficiency in two significant ways. First, there
is no clear explanation as to why courts apply this deferential standard in a transsubstantive way to all rights-restrictions and without regard to the specific right
involved. As Professors Emma Kaufman and Justin Driver observe in the context
of prison law, applying the same standard to all rights is a clear departure from
traditional constitutional analysis that adjust the scrutiny standard based on the

completed his term of supervised release successfully and was no longer [under] the supervision of [sic]
any authority”).
302. 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 supervisedrelease 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”).
303. See Chemerinsky, supra note 206, at 459–61.
304. Turner v. Safley, 482 U.S. 78, 100 (1987) (Stevens, J., dissenting in part concurring in part)
(internal citations omitted).
305. Dolovich, Coherence of Prison Law, supra note 296, at 302.
306. See Dolovich, Forms of Deference, supra note 295. at 245; Driver & Kaufman, supra note
12, at 573; Shapiro, Lenient in Theory, supra note 193, at 989–94; Karteron, supra note 59, at 4; Jamelia
N. Morgan, Reflections on Representing Incarcerated People with Disabilities: Ableism in Prison
Reform Litigation, 96 DENV. L. REV. 973, 982–85 (2019); Margo Schlanger, Inmate Litigation, 116
HARV. L. REV. 1555, 1606 (2003).

Electronic copy available at: https://ssrn.com/abstract=4424954

144

CALIFORNIA LAW REVIEW

[Vol. 111:101

distinct rights at issue.307 The result is an “oversimplified constitutional analysis”
that fails to appreciate the differences between constitutional rights. 308 Of course,
the differences between rights generally matter in constitutional analysis and
there is no compelling justification to not recognize those differences in the
context of punishment.309
Second, courts’ treatment of the rehabilitative justification is often
contradictory. 310 On one hand, the Supreme Court has explicitly rejected
rehabilitation as a justification for harsh punishments. For example, in Tapia v.
United States, the Court unanimously invalidated a district court’s decision to
impose a longer prison term so that the defendant could partake in a “500 Hour
Drug Program.”311 Writing for the Court, Justice Kagan explained that it was
improper for the court to sentence the defendant “for the purpose of rehabilitating
[her] or providing [her] with needed educational or vocational training.” 312
Although the case concerned the Sentencing Reform Act, the decision reflects
the Court’s skepticism that rehabilitation is a basis to impose a punishment. The
Court has also recognized that harsh treatment, like solitary confinement, is not
rehabilitative and cannot be justified as such. 313
On the other hand, the Supreme Court, as well as lower courts, continue to
selectively invoke rehabilitation as a justification for applying the “reasonably
related” standard, despite simultaneously recognizing its shortcomings. Book
bans and visitation restrictions in prison, for example, have been upheld as
“reasonably related” to rehabilitation. 314 The Supreme Court also invoked
rehabilitation when it rejected a Fifth Amendment challenge to a sex offender
treatment program that required participants to admit guilt. 315 In short, courts
often find that rehabilitation trumps constitutional rights. 316 This inconsistent
approach suggests the legal infirmity of the rehabilitation justification.
3. Inapplicable to Non-Carceral Punishment
Another reason to reject the reasonably related standard is that it does not
easily translate to the non-carceral setting.317 On the most basic level, the
deprivation of rights should only occur if it is incidental to the administration of
the program. In prison, it is prison walls that limit liberty. Likewise, the erasure
of First and Fourth Amendment rights in prison is often upheld on the grounds
307.
308.
309.
310.
311.
312.
313.
314.
(2003).
315.
316.
317.

Driver & Kaufman, supra note 12, at 537–38.
Id. at 572.
See id. at 576.
See id. at 566.
Tapia v. United States, 564 U.S. 319, 334–35 (2011).
Id. at 329–30.
See Wilkinson v. Austin, 545 U.S. 208 (2005); Driver & Kaufman, supra note 12, at 561.
Beard v. Banks, 548 U.S. 521 (2006); see also Overton v. Bazzetta, 539 U.S. 126, 138
McKune v. Lile, 536 U.S. 24, 31–31, 47–48 (2002).
See Driver & Kaufman, supra note 12, at 565.
See Karteron, supra note 59, at 684.

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

145

that it “is necessary, as a practical matter, to accommodate a myriad of
‘institutional needs and objectives’ of prison facilities, . . . chief among which is
internal security.” 318 The deference afforded to prison officials in restricting
rights reflects the view that because of the “dangers of prison life, prison officials
need[] a free hand in the daily running of their facilities and in crafting
institutional policy.”319
In contrast, the same security concerns and institutional needs do not apply
to non-carceral punishment. 320 Deference to correctional needs is not applicable
in the non-carceral punishment setting. As Justice Stevens explained in the
context of probation and parole searches, the Safley standard “cannot be mapped
blindly” onto non-carceral punishments. 321 Unlike in prison where limited
privacy may be needed to accommodate “institutional needs,” such as the “safety
of inmates and guards, ‘internal order,’ and sanitation,” these concerns
“manifestly do not apply to parolees” 322 or for that matter, anyone on court
supervision.
Some might argue that there are separate security needs for people
convicted of crimes who are not in prison. However, as discussed below, those
needs can be addressed in narrower ways.
E. Courts Concede the Need for Constitutional Scrutiny
Another reason to reject punishment exemption is that courts appear to
concede that non-carceral punishment is not categorically immune from all
forms of constitutional scrutiny. There are four primary examples of courts
acknowledging that rights-stripping punishments are subject to at least some
constitutional review.
First, the “reasonably related” standard, described supra, demonstrates that
punishment is not categorically immune from constitutional scrutiny. If it were,
there would be no need to apply the reasonably related standard. And certainly,
if punishment exemption was doctrinally accepted, there would be no obvious
explanation for why some courts—albeit a small minority—have in fact applied
strict scrutiny to some punishments. 323 The problem is not the lack of any
318. Hudson v. Palmer, 468 U.S. 517, 524 (1984) (internal citations omitted); see also Overton,
539 U.S. at 138 (2003) (upholding family visiting restrictions based on state’s interest in prison security);
Bell v. Wolfish, 441 U.S. 520, 547 (1979) (“Prison administrators . . should be accorded wide-ranging
deference in the adoption and execution of policies and practices that in their judgment are needed to
preserve internal order and discipline and to maintain institutional security.”); Jones v. N. Carolina
Prisoners’ Lab. Union, Inc., 433 U.S. 119, 132 (1977) (upholding prison rule that prohibited a prison
labor union because the union “would be detrimental to order and security in the prisons.”); Beard, 548
U.S. at 521 (upholding prison restriction on newspapers, magazines and photos on the basis of prison
security).
319. Dolovich, The Failed Regulation, supra note 210, at 166.
320. See Samson, 547 U.S. at 862–63 (Stevens, J., dissenting); Karteron, supra note 59, at 684.
321. Samson, 547 U.S. at 863 (Stevens, J., dissenting).
322. Id. at 862–63 (internal citations omitted).
323. See infra Part II A.

Electronic copy available at: https://ssrn.com/abstract=4424954

146

CALIFORNIA LAW REVIEW

[Vol. 111:101

constitutional review; rather, there is no obvious doctrinal explanation for
exempting rights-restricting punishment from the constitutional scrutiny that
would apply outside the punishment context. But the mere existence of the
“reasonably related” standard, despite its significant shortcomings, undermines
the legality and legitimacy of exempting punishment from constitutional rules.
Second, the Fourth Amendment scrutiny applied to non-carceral
punishments, such as probation or parole searches, also demonstrates that
punishment is subject to at least some constitutional scrutiny. In Samson and
Knights, the Court applied a Fourth Amendment “reasonableness” analysis in
upholding searches of people on parole and probation. 324 Even though these
cases resulted in fewer privacy protections for people on court supervision, it
was not because the searches were immune from constitutional scrutiny. If
searches could legally be imposed as punishment, there would be no need to
determine if the searches are reasonable under the Fourth Amendment.
Third, as described in more detail below, courts’ conspicuous reliance on
people’s consent to justify the deprivation of rights suggests that courts are
indeed aware of constitutional limits on punishment. Were courts able to simply
impose whatever punishment they saw fit (so long as it did not violate the Eighth
Amendment), they would have no need to rely on consent. But that is not the
case. Instead, courts often invoke and rely on consent, and thereby avoid
addressing constitutional questions.
Fourth, the Court has acknowledged in two separate cases that punishment
is not categorically immune from substantive due process scrutiny. 325 In Cooper
Industries v. Leatherman Tool Group, the Court explicitly stated that substantive
limits apply to punishment in both the criminal and civil context: “Despite the
broad discretion that States possess with respect to the imposition of criminal
penalties and punitive damages, the Due Process Clause . . . imposes substantive
limits on that discretion.” 326 Likewise, in BMW v. Gore, the court also
recognized substantive due process limits criminal punishment. 327 There is no
obvious doctrinal explanation as to why substantive due process would not
similarly apply in the context of criminal punishments that infringe on
fundamental rights.

324. United States v. Knights, 534 U.S. 112, 121 (2001); Samson v. California, 547 U.S. 843,
844 (2006).
325. See Jane Bambauer & Andrea Roth, From Damage Caps to Decarceration: Extending Tort
Law Safeguards to Criminal Sentencing, 101 B.U. L. REV. 1667, 1679 (2021)
326. Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 433 (2001).
327. BMW of North America, Inc. v. Gore, 517 U.S. 559, 568 (1996).

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

147

III.
ANSWERING ANTICIPATED OBJECTIONS
A. Prison Is Worse Yet Perfectly Legal
Exempting punishment from traditional constitutional scrutiny is very
much driven by courts’ evaluating the deprivations of rights through the
comparative lens of prison, which is the archetypal form of incarceration and
punishment. 328 For example, in Samson, Justice Stevens observed that the
majority “seems to assume” that if a person “may be subject to random and
suspicionless searches in prison, . . . then he cannot complain when he is subject
to the same invasion outside of prison, so long as the State still can imprison
him.” 329
The reasoning of the majority in Samson is no anomaly. Because traditional
prisons “serve as the touchstone of constitutional scrutiny,” 330 courts often view
anything less restrictive than prison as categorically constitutional. For example,
an Illinois court upheld a probation condition requiring the defendant to obtain
pregnancy tests because the court had “difficulty seeing how a minor, routine
blood test conducted every two months could be more intrusive upon defendant
than six months in jail.” 331
Yet, it is legally unsound to conclude that anything less restrictive than
prison is per se constitutional. As the Ohio Supreme Court stated, simply because
the state “might have incarcerated a defendant does not, in itself, justify” the
imposition of any restriction that would have also applied in prison. 332 In that
case, the court was reviewing an anti-procreation probation condition and
pointed out that while the government interest in maintaining security of a prison
might justify such a restriction in prison, the same government interest does not
apply in the context of probation. 333 Likewise, in striking down denaturalization
as a punishment for a crime, the Supreme Court noted that “the death penalty is
not a license to the Government to devise any punishment short of death within
the limit of its imagination.” 334 Presumably, a non-carceral punishment that
forbids people from attending religious services or visiting with loved ones
should be considered unconstitutional, even if those same rights are limited in
prison. As the dissenting justice in the Wisconsin Supreme Court case explained
with respect to the anti-procreation condition in Oakley, “[w]hile the State has
chosen not to exercise control over Oakley’s body by depriving him of the
freedom from restraint, it does not necessarily follow that the State may opt to

328.
329.
330.
331.
332.
333.
334.

Murphy, supra note 180, at 1347.
Samson, 547 U.S. at 864 (Stevens, J., dissenting).
Id.
People v. Ferrell, 659 N.E.2d 992, 995–96 (Ill. App. Ct. 1995).
State v. Talty, 814 N.E.2d 1201, 1206 (Ohio 2004).
Id.
Trop v. Dulles, 356 U.S. 86, 99 (1958).

Electronic copy available at: https://ssrn.com/abstract=4424954

148

CALIFORNIA LAW REVIEW

[Vol. 111:101

exercise unlimited control over his right to procreate.” 335 In short, the fact that
prison is more restrictive and strips people of more rights, does not—without
more—justify the same invasions associated with non-carceral punishment.
B. But For Non-Carceral Punishments, People Would Be Imprisoned
Exempting non-carceral punishment from traditional constitutional
scrutiny is often either implicitly or explicitly justified on the assumption that
but for a given non-carceral punishment, the same person would otherwise be
incarcerated. Since non-carceral punishment is preferable to prison, the argument
goes, there is no need for constitutional scrutiny. There are two key problems
with this assumption.
First, in a world without non-carceral punishments, there is no convincing
evidence that the same people would otherwise be incarcerated. Some may, but
many would or should not. It is difficult, if not impossible, to empirically
measure the impact of non-carceral punishments on incarceration rates.
Second, and relatedly, the claim that people would otherwise be
incarcerated assumes that the alternative is prison, not freedom. Yet, for lowlevel crimes or people charged with crimes for the first time, it is likely that a
judge would not—or at least should not—impose a traditional carceral sentence
even if non-carceral punishments did not exist. Conversely, some non-carceral
punishments, like parole and federal supervised release, are never substitutes for
incarceration but are “meted out in addition to, not in lieu of, incarceration.” 336
It is rarely a one-to-one exchange between one day in prison and one day
subjected to non-carceral punishment.337
More fundamentally, the fact that some non-carceral punishments are
experienced as less harsh than prison does not justify punishments that violate
constitutional rights. As Professor Michelle Alexander explains in the context of
electronic monitoring, “digital prisons are to mass incarceration what Jim Crow
was to slavery.”338 She elaborates that simply because an enslaved person was
permitted to live with their family, albeit subject to “whites only signs” and
segregation, does not justify Jim Crow.339 By the same token, simply because
non-carceral punishment is less harsh than prison does not justify punishments
that otherwise violate the Constitution.
C. Consent Nullifies Need for Constitutional Scrutiny
An individual’s purported “consent” to non-carceral punishments is often
invoked as a primary objection to subjecting punishment to heightened
constitutional scrutiny. Indeed, in my nationwide survey of rules governing court
335.
336.
337.
338.
339.

Oakley, 245 N.W.2d at 218 (Bradly, J. dissent).
United States v. Reyes, 283 F.3d 446, 461 (2d Cir. 2002).
Weisburd, Punitive Surveillance, supra note 2, at 105; Murphy, supra note 180, at 1323.
Alexander, supra note 15.
Id.

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

149

supervision, most required participants to either consent to, or waive, certain
rights.340 Because people choose non-carceral punishment over physical
incarceration, the argument goes, there is no need for courts to resolve
constitutional questions.
There are several reasons that consent does not resolve the question of
punishment exemption. First, even if consent were not considered a basis to
justify non-carceral punishments, the problem of constitutional limits remains.
Imagine if consent was removed from the calculation. For example, if bargaining
over punishment was impossible, it is likely that prosecutors would ask for, and
judges would impose, non-carceral punishments that violate basic rights.
Consent, in this scenario, is irrelevant. Indeed, in practice, courts often simply
order many forms of non-carceral punishment and there is no opportunity to “opt
out.”341 In short, consent is an easy way for courts to avoid thorny constitutional
questions, like the legality of punishment exemption. But the questions remain.
Interestingly, when the Supreme Court had the opportunity to adopt consent
as the basis to uphold various rights deprivations associated with punishment,
they declined to do so.342 Perhaps the Court’s avoidance of invoking consent in
some punishment-related cases is evidence that consent alone cannot—and
should not—nullify the need for constitutional scrutiny.
Second, as previously noted, there is often no consent to non-carceral
punishments. It is rarely as simple as someone consenting to a non-carceral
option. More often, people often spend months cycling through different types
of punishment. There is no reason to consent to non-carceral punishments since
they do not offer a “discount” on an otherwise carceral sentence and raise
unconstitutional conditions problems, a topic I have addressed in related work.343
Third, the influence of coercion also makes consent an insufficient
safeguard against the deprivation of rights. 344 As other scholars have observed,
consent is a normative construction that often fails to account for race, gender,
and disability as factors in determining if someone is free to leave, to decline a
search, or, in the context of non-carceral punishment, free to say no. 345 As
Professors Roseanna Sommers’ and Vanessa K Bohns’ empirical research of

340. Weisburd, Carceral Control, supra note 53 at 11.
341. See Weisburd, Sentenced to Surveillance, supra note 74, at 741.
342. See United States v. Knights, 534 U.S. 112 (2001); Samson v. California, 547 U.S. 843
(2006). In both cases, the Court choose to not rely on consent to resolve the legality of the Fourth
Amendment searches.
343. See, e.g., Weisburd, Sentenced to Surveillance, supra note 74.
344. Id.; see also McLeod, Decarceration Courts, supra note 15, at 1667. There is also a rich
Law and Political Economy literature challenging consent, and in particular, the limits of consent in
private law. See, e.g., Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski, K. Sabeel
Rahman, Building A Law-and-Political-Economy Framework: Beyond the Twentieth-Century
Synthesis, 129 YALE L.J. 1784, 1813 (2020).
345. See Jamelia Morgan, Essay, Disability’s Fourth Amendment, 122 COLUM. L. REV. 489
(2022); Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth
Amendment Pathways to Police Violence, 105 CALIF. L. REV. 125, 141 (2017).

Electronic copy available at: https://ssrn.com/abstract=4424954

150

CALIFORNIA LAW REVIEW

[Vol. 111:101

consensual police encounters demonstrates, “decision makers judging the
voluntariness of consent consistently underestimate the pressure to comply with
intrusive requests.” 346 Their research also suggests that the increasingly popular
reform of informing people that they can refuse consent is likely to have little
effect on the coercive nature of encounters between individuals and the state.347
This research further proves what Professors I. Bennett Capers and Devon
Carbado claim: people’s decision to consent is based on the premise that the
“good citizen, at times, willingly waives their right to silence, and at other times
their right to speak. The good citizen, having nothing to hide, welcomes police
surveillance.” 348 These coercion concerns apply equally to consent in the
punishment context and undermine the premise that consent is a sufficient check
against otherwise unconstitutional punishments.
D. Erasure of Rights is Not Punishment
Another objection to subjecting punishment to traditional levels of
constitutional scrutiny is that the deprivation of rights is not punishment. Rather,
the objection goes, the erasure of rights is a condition of punishment and not the
punishment itself. 349 A related objection is that there must be a distinction
between punishment and, for example, court-ordered treatment or court-ordered
job training. Job training and treatment are not, and should not, be considered
“punishment.”
This objection is not without support. Under traditional Eighth Amendment
analysis, if the restrictions are not “formally meted out as punishment by the
statute or the sentencing judge, some mental element must be attributed to the
inflicting [person] before it can qualify” as punishment. 350 Indeed, as Justice
Thomas has opined, the restriction of rights associated with punishment should
not in fact count as punishment itself. 351 The Eighth Amendment, Justice
Thomas explained in a dissent, applies only to punishments meted out by statutes
or sentencing judges, and “not generally to any hardship that might befall a
prisoner during incarceration.”352 As a lower court noted, 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 . . . does not arise for the
reason that the Constitution applies only to punishment.” 353

346. Roseanna Sommers & Vanessa K. Bohns, The Voluntariness of Voluntary Consent:
Consent Searches and the Psychology of Compliance, 128 YALE L.J. 1962, 1962 (2019).
347. Id.
348. I. Bennett Capers, Criminal Procedure and the Good Citizen, 118 COLUM. L. REV. 653, 655
(2018); Carbado, supra note 345.
349. Weisburd, Punitive Surveillance, supra note 2, at 185.
350. Margo Schlanger, The Constitutional Law of Incarceration, Reconfigured, 103 CORNELL L.
REV. 357, 380 (2018) (emphasis original) (quoting Wilson v. Settler, 501 U.S. 294, 300 (1991)).
351. Hudson v. McMillian, 503 U.S. 1, 18 (1992) (Thomas, J., dissenting).
352. Id.
353. Springer v. United States, 148 F.2d 411, 415 (9th Cir. 1945).

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

151

Yet rights-restrictions that are often framed as merely conditions or rules
are in fact “part of the punishment, even though not specifically ‘meted out’ by
a statute or judge.” 354 Justice Thomas himself later observed as much in the
prison setting, observing in a footnote that “restrictions imposed by prison
officials may also be a part of the sentence.” 355
In the context of non-carceral punishment, it is virtually impossible to
separate conditions from punishment. They are one and the same. As the Seventh
Circuit explained in the context of probation and parole, the conditions
themselves “are the confinement” and challenging the conditions was the
equivalent of attempting to remove bars from a cell.356
What are traditionally labeled as conditions or collateral consequences are
often experienced as punishment. Some scholars have called for a broader
definition of punishment, one that recognizes that conditions, as well as certain
collateral consequences, are part of punishment if they are experienced as
punishment. 357 As explored more fully in prior work, the factors set forth in
Kennedy v. Mendoza-Martinez, which are relied on to determine if a measure is
regulatory or punishment, weigh in favor of classifying non-carceral punishment
as punishment.358 Several courts have concluded that electronic ankle
monitoring, for example, is punishment. 359 And should a person on probation or
parole fail to attend court-ordered treatment or job training, they risk
reincarceration—suggesting that these court-imposed requirements are in fact
punishment.
The failure of courts to define punishment consistently or clearly is hardly
new. 360 But even if rights-restricting punishments are classified as regulations,
conditions, collateral consequences, or court-ordered treatment, that
classification does not resolve the question of what constitutional security is due.
The distinction makes a difference for Eighth Amendment purposes only.

354. Wilson v. Seiter, 501 U.S. 294, 306 (1991) (White, J., concurring) (emphasis omitted).
355. Overton v. Bazzetta, 539 U.S. 126, 140 (2003) (Thomas, J., concurring).
356. Williams v. Wisconsin, 336 F.3d 576, 579 (7th Cir. 2003) (contemplating parole); see also
Drollinger v. Milligan, 552 F.2d 1220, 1225 (7th Cir. 1977) (contemplating probation).
357. Kamal Ghali, No Slavery Except as a Punishment for Crime: The Punishment Clause and
Sexual Slavery, 55 UCLA L. REV. 607, 636 (2008); Alice Ristroph, Sexual Punishments, 15 COLUM. J.
GENDER & L. 139, 168 (2006); John F. Stinneford, Is Solitary Confinement A Punishment?, 115 NW. U.
L. REV. 9, 18 (2020).
358. Weisburd, Punitive Surveillance, supra note 2, at 194.
359. 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, 817 N.W.2d 497, 502 (Mich. 2012); Doe v.
Rausch, 382 F.Supp.3d 783, 799 (E.D. Tenn. 2019); People v. Hallak, 873 N.W.2d 811, 820–21 (Mich.
Ct. App. 2015), rev’d in part on other grounds, 876 N.W.2d 523 (2016).
360. See Carol S. Steiker, Punishment and Procedure: Punishment Theory and the CriminalCivil Procedural Divide, 85 GEO. L.J. 775, 781 (1997); Gabriel J. Chin, The New Civil Death:
Rethinking Punishment in the Era of Mass Conviction, 160 U. PA. L. REV. 1789, 1832 (2012); Jenny
Roberts, Gundy and the Civil-Criminal Divide, 17 OHIO ST. J. CRIM. L. 207 (2019); 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).

Electronic copy available at: https://ssrn.com/abstract=4424954

152

CALIFORNIA LAW REVIEW

[Vol. 111:101

Conditions, rules, and regulations, like punishments or collateral consequences,
have no special status that exempt them from traditional constitutional
scrutiny. 361 State action is state action, regardless of the nature, title, or
classification of the restraint or regulation. If a restraint is civil in nature, then it
is more obvious that traditional constitution scrutiny applies. As this Article
urges, the distinction between civil and criminal should make little difference
when evaluating the legality of rights-violating restraints.
E. The Eighth Amendment Occupies the Field
Challenging punishment exemption also raises questions about the proper
role of the Eighth Amendment: should the Eight Amendment occupy the field or
do other constitutional limitations also apply? Skeptics might reasonably think
that only the Eighth Amendment—and the Eighth Amendment only—is the
definitive and final word on limiting punishment. This view is most clearly
captured in Justice Thomas’ dissent in Overton v. Bazzetta, in which he posits
that the Eighth Amendment is the only provision of the Constitution that “speaks
to” punishment and accordingly, states are “free to define and redefine all types
of punishment, including imprisonment, to encompass various types of
deprivations—provided only that those deprivations are consistent with the
Eighth Amendment.” 362 Under this reasoning, so long as the rights restriction
does not amount to cruel and unusual punishment, the restriction stands.
The position that punishment is only subject to Eighth Amendment scrutiny
also reflects the Court’s position in Graham v. Connor that constitutional claims
must be “judged by reference to the specific constitutional standard which
governs that right” rather than other related rights or a “more generalized notion
of ‘substantive due process.’” 363
Yet, despite the Graham and Overton opinions, the Court has more recently
“rejected the view that the applicability of one constitutional amendment preempts the guarantees of another.”364 Indeed, to the extent that punishments
infringe on a range of rights, such as the First and Fourth Amendments or
substantive due process, there is no obvious jurisprudential reason that only the
Eighth Amendment applies. 365 Although the Supreme Court in Graham
appeared to adopt the view that rights are “hermetically sealed units whose
principles must not contaminate one another” 366 this “constitutional rights

361.
362.
363.
364.
365.
366.
(2002).

See Mayson, Collateral Consequences supra note 252, at 306–09.
Overton, 539 U.S. at 139–40 (Thomas, J., concurring) (original emphasis omitted).
Graham v. Connor, 490 U.S. 386, 395 (1989).
United States v. James Daniel Good Real Property, 510 U.S. 43, 49 (1993).
See Zuckerman, supra note 14, at 28–29.
Albert W. Alschuler, Racial Profiling and the Constitution, 2002 U. CHI. LEGAL F. 163, 193

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

153

segregation” 367 position is not inevitable. 368 Instead, amendments should be read
together and understood as a whole. 369
The view that the Eighth Amendment occupies the field also ignores the
entire line of cases that do in fact apply other forms of constitutional scrutiny to
punishment. 370 If the Eighth Amendment were the only limit on punishment,
then presumably punishment today (both in prison and out) would be even
harsher, so long as it did not run afoul of the cruel and unusual standard. But that
is not the case. As addressed in Part II, courts routinely subject punishment to at
least some level of scrutiny beyond the Eighth Amendment. Likewise, if the
Eighth Amendment were the only limit on punishment, there would be no need
for courts to rely on consent to justify rights-restricting punishments.
In short, the Eighth Amendment is not the only provision of the
Constitution that limits punishment. As prior Supreme Court case law has made
clear, a conviction and confinement in prison—without more—is not sufficient
grounds to deprive people of all constitutional protections. 371 Of course, prison
involves obvious deprivations, including numerous liberty deprivations, but
generally speaking, a person in prison “[r]etains all the rights of an ordinary
citizen except those expressly, or by necessary implication, taken from him by
law.” 372 If these are the protections afforded to people in prison, then people
subject to non-carceral punishments should be no worse off when it comes to
constitutional protections.
IV.
IMPLICATIONS OF ELIMINATING PUNISHMENT EXEMPTION
If non-carceral punishment is not immune from traditional constitutional
scrutiny, what follows? What happens to non-carceral punishments like internet
bans for people convicted of certain child pornography crimes? Or standard
travel restrictions? Or court-mandated drug treatment or AA? Do these
restrictions all disappear? This Part explores what it might mean for the future
of non-carceral punishment, as well as punishment and the decarceration
movement generally, if the erasure of rights associated with punishment were
subject to the constitutional levels of scrutiny applied outside of the punishment
context. Under this legal framework some punishments would undoubtedly pass
constitutional muster, but other restrictions would be narrowed, if not eliminated
altogether.
367. I. Bennett Capers, Rethinking the Fourth Amendment: Race, Citizenship, and the Equality
Principle, 46 HARV. C.R.-C.L. L. REV. 1, 35 (2011).
368. I. Bennett Capers, Criminal Procedure and the Good Citizen, 118 COLUM. L. REV. 653, 709
(2018).
369. Id.; Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 80510 (1994).
370. See supra Part II E.
371. Bell, 441 U.S. at 545.
372. Procunier, 416 U.S. at 422–23 (Marshall, J, concurring).

Electronic copy available at: https://ssrn.com/abstract=4424954

154

CALIFORNIA LAW REVIEW

[Vol. 111:101

A. New Limits on Non-Carceral Punishment
Eliminating punishment exemption would mean that rights-stripping
punishments would be subject to traditional constitutional scrutiny that applies
outside the punishment context. The chart below offers a visual depiction of how
rights-restricting punishments are evaluated now and how they could be
evaluated were punishment exemption eliminated.
Type of
Punishment
Electronic
Monitoring

Shaming
Punishments

Existing Scrutiny
•
•

Fourth Amendment Search
Not “reasonably related” to
a purpose of punishment

•

Not “reasonably related” to
a purpose of punishment
Eighth Amendment

•

Not “reasonably related” to
a purpose of punishment
Eighth Amendment

•

Not “reasonably related” to
a purpose of punishment

•

•
•

Family
Restrictions

•
•

Apology
Letters

Applying Traditional Constitutional
Scrutiny
•
Fourth Amendment Seizure
•
First Amendment (Freedom of
Association & Speech)
•
Substantive Due Process (autonomy
and liberty)

•

•

•
•

First
Amendment
(compelled
speech)
Substantive Due Process (autonomy
and liberty)
First Amendment (Freedom of
Association)
Substantive Due Process (autonomy
and liberty)
First
Amendment
(compelled
speech)
Substantive Due Process (autonomy)
Fifth Amendment (right against selfincrimination)

As this chart makes clear, the applicable constitutional scrutiny depends on
the right involved. For example, punishments that restrict or compel speech
would be subject to traditional First Amendment strict scrutiny analysis. While
analyzing each type of non-carceral punishment using traditional constitutional
scrutiny is beyond the scope of this Article, focusing on one example, electronic
ankle monitoring, is instructive.
As noted previously, electronic ankle monitoring implicates several rights,
including liberty interests, protected by the Fourteenth Amendment. What
happens when electronic ankle monitoring (including its attendant rules) is
subject to strict scrutiny? As deployed today, there are at least two features of
electronic ankle monitoring that are neither narrowly tailored nor directly related
to public safety or rehabilitation.
First, it is not evident that the degree of surveillance, control, and
restrictions inherent in electronic ankle monitoring is necessary because there
are less restrictive means of achieving the goals of court supervision. Generally,
rehabilitation, public safety, and improved court appearance rates may be

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

155

compelling government interests furthered by electronic ankle monitoring.373
And yet, there is little empirical evidence that such monitoring promotes these
interests. 374
The question of efficacy was addressed in a dissent by the late Judge Keith
of the Sixth Circuit, who expressed deep skepticism about ankle monitoring:
Although the device is obvious, it cannot physically prevent an offender
from re-offending. Granted, it may help law enforcement officers track
the offender (after the crime has already been committed), but it does
not serve the intended purpose of public safety because neither the
device, nor the monitoring, serve as actual preventative measures.
Likewise, it is puzzling how the regulatory means of requiring the
wearing of this plainly visible device fosters rehabilitation. To the
contrary . . . a public sighting of the modern day “scarlet letter”—the
relatively large G.P.S. device—will undoubtedly cause panic, assaults,
harassment, and humiliation. 375
Following this logic, electronic monitoring rules that restrict people’s
ability to visit religious institutions, hospitals, or other places where the risk of
re-offending is arguably low, is neither necessary nor narrowly focused.
Similarly, there is scant evidence that house arrest and restrictions on social visits
has a direct impact on recidivism. 376 As Maya Schenwar and Victoria Law
explain, electronic surveillance mechanisms are not “rehabilitative or
transformative—they do not support people in making changes that would be
helpful in their lives.” 377 According to the National Institute of Justice’s report,
people on ankle monitors believed that the visibility of the monitor made it more
difficult to obtain and keep a job. 378 Without steady employment, it becomes
impossible to cover court and monitoring fees and reincarceration becomes more
likely.379
If there is little evidence that electronic monitoring in fact accomplishes the
goals of rehabilitation, ensures court appearances, or protects public safety, it is
373. Eisenberg, supra note 76, at 137.
374. Comm. v. Norman, 142 N.E.3d 1, 9 (Mass. 2020) (“There is no indication on this record
that GPS monitoring would have increased the likelihood of the defendant returning to court.”); see also
Eisenberg, supra note 76, at 136–45 (describing how electronic monitoring does not necessarily further
traditional theories of punishment); Christine S. Scott-Hayward & Erin Eife, Correctional and
Sentencing Law Commentary: Electronic Monitoring, Crim. L. Bull. (forthcoming 2021) (noting that
“there is little evidence showing the effectiveness” of electronic monitoring); Kathryn Saltmarsh,
RESEARCH BRIEFING: STATE USE OF ELECTRONIC MONITORING, ILLINOIS SENTENCING POLICY
ADVISORY COMMITTEE, (2018) (concluding that monitoring has little effect on recidivism); Patrice
James, et. al., Cages Without Bars: Pretrial Electronic Monitoring Across the United States, Shriver
Center on Poverty Law, Media Justice, Chicago Appleseed, Sept. 2022 (addressing how the harms of
monitoring undermine the goals of monitoring, including reducing risk to safety and missed court dates).
375. Doe v. Bredesen, 507 F.3d 998, 1012 (6th Cir. 2007) (Keith, J., dissenting).
376. Eisenberg, supra note 76, at 144.
377. SCHENWAR, supra note 15, at 35.
378. NATIONAL INSTITUTE OF JUSTICE, ELECTRONIC MONITORING REDUCES RECIDIVISM 3
(2011).
379. SCHENWAR, supra note 15, at 37–41.

Electronic copy available at: https://ssrn.com/abstract=4424954

156

CALIFORNIA LAW REVIEW

[Vol. 111:101

difficult to justify the restraint as “necessary.” In fact, the opposite may be true.
Research consistently shows the dangers of isolation and the positive impact of
social and familial relationships for people returning from prison.380 There is also
evidence that intensive supervision increases the odds that a person will be
rearrested and reincarcerated. 381 It is therefore not surprising that probation and
parole violations, which include violations related to electronic monitoring, are
significant contributors to mass incarceration.382
Second, who is subject to electronic monitoring is also not narrowly
tailored. For electronic monitoring to be limited and necessary it would only be
imposed in cases where a person would be incarcerated in the absence of
monitoring. This requirement would ensure that the monitoring was genuinely
being used as an alternative and not simply as an add-on. This is a difficult
inquiry. As other scholars have pointed out, risk assessment algorithms that are
used at both the pretrial and sentencing stages to determine who should be
released are rife with problems and bias, often relying on data that is itself
suspect.383 But the difficulty in answering this question should not stop the
inquiry. Given the deplorable conditions in prisons and jails, electronic
monitoring may be a better alternative in some circumstances, but those
circumstances should be much more limited than they are today.
In some circumstances, electronic monitoring may survive strict scrutiny.
If it was “imposed for only a short period, was demonstrably effective, and
constituted the only means of achieving the safety goal, for instance, it might
nonetheless withstand challenge.” 384 Surviving strict scrutiny in this
circumstance makes intuitive sense. Traditional constitutional scrutiny does not
380. See HARVARD KENNEDY SCHOOL, EXECUTIVE SESSION ON COMMUNITY CORRECTIONS,
TOWARD AN APPROACH TO COMMUNITY CORRECTIONS FOR THE 21ST CENTURY: CONSENSUS
DOCUMENT OF THE EXECUTIVE SESSION ON COMMUNITY CORRECTIONS (2017) (“family members
should be viewed as critical partners in the process of social integration”) or (noting that intervention
services must include family members in the social integration process); AMY L. SOLOMON, JENNY W.
L. OSBORNE, LAURA WINTERFIELD, BRIAN ELDERBROOM, PEGGY BURKE,RICHARD STROKER,
EDWARD E. RHINE & WILLIAM D. BURRELL, PUTTING PUBLIC SAFETY FIRST, THE URBAN INSTITUTE
23 (2008) (“interventions shown to be successful with at-risk populations are those that recruit and
engage family members, spouses, and other supportive individuals involved in the lives of the
intervention population” pg. 18); STEVE AOS ET. AL., EVIDENCE-BASED ADULT CORRECTIONS
PROGRAMS: WHAT WORKS AND WHAT DOES NOT (2006).
381. Michelle S. Phelps, Mass Probation from Micro to Macro: Tracing the Expansion and
Consequences of Community Supervision, 3 ANN. REV. CRIMINOLOGY 261, 262 (2020); MICHAEL P.
JACOBSON ET AL., LESS IS MORE: HOW REDUCING PROBATION POPULATIONS CAN IMPROVE
OUTCOMES 6 (2017).
382. See KENDRA BRADNER ET AL., MORE WORK TO DO: ANALYSIS OF PROBATION AND
PAROLE IN THE UNITED STATES, 2017–18 (2020); SCHENWAR, supra note 15, at 88; Human Rights
Watch, Revoked: How Probation and Parole Feed Mass Incarceration in the United States (July 31,
2020).
383. See Ngozi Okidegbe, Discredited Data, 107 CORNELL L. REV. 2007 (2022); Jessica Eaglin,
Algorithms as Racial Ideology in Law (manuscript on file with author); Sean Allan Hill III, Bail Reform
and the (False) Racial Promise of Algorithmic Risk Assessment, 68 UCLA L. REV. 910 (2022); Sandra
G. Mayson, Bias in, Bias Out, 128 YALE L.J. 2218 (2019).
384. Murphy, supra note 180 at 1406.

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

157

operate in a vacuum and the definition of a compelling state interest inevitably
accounts for the specific needs and contexts of the institutional setting.
While applying heightened scrutiny to different types of non-carceral
punishment is beyond the scope of this Article, the claim remains regardless of
the right involved: while some subset of non-carceral punishments may survive
traditional constitutional scrutiny, many forms and features of non-carceral
punishment would be reined in, if not eliminated altogether.
B. New Limits on All Punishment
The problem of exempting punishment from traditional constitutional
review is not limited to non-carceral punishment. If punishment exemption is
rejected, then what about prison? Or the death penalty? Are those punishments
also subject to the Bill of Rights? The answer must be yes, despite the practical
implications. A prison sentence is a seizure. Presumably courts would uphold
such seizures as reasonable, but not because the Fourth Amendment is
inapplicable. Likewise, incarceration as an infringement on liberty would be
subject to strict scrutiny.385 And were a court to punish someone in prison by
requiring that they never speak or write critically about the government, that
punishment would need to withstand First Amendment scrutiny. As Professors
Kaufman and Driver argue in the context of prison law, “courts are perfectly
capable of refined, rights-specific jurisprudence, even when dealing with
constitutional criminal procedure and exceptional institutions” such as prisons,
or for that matter, punishment more generally.386
Applying traditional constitutional scrutiny to rights-stripping punishments
is not without precedent. The Religious Land Use and Institutionalized Persons
Act (RLUIPA), passed in 2001, aimed to protect religious practices in prisons.
In passing the Act, Congress explicitly imposed a strict scrutiny standard:
pursuant to the Act, prisons cannot substantially burden a prisoner’s religious
exercise unless the burden is “in furtherance of a compelling governmental
interest” and is “the least restrictive means of furthering that compelling
governmental interest.” 387 The Act “creates a bifurcated regime for expressive
activity in prison, in which speech claims are governed by a highly deferential
standard while free exercise claims are reviewed under strict scrutiny.” 388
Indeed, when the Supreme Court relied on RLUIPA to strike down a prison
policy that prevented a Muslim prisoner from growing a beard, the Court
emphasized the need to apply RLUIPA’s “rigorous standard” and not simply
defer to the expertise of prison officials. 389

385.
386.
387.
388.
389.

See Dudani, supra note 12, at 2123.
Driver & Kaufman, supra note 12, at 575.
42 U.S.C. §§ 2000cc(a)(1)(A), (B) (2000).
Shapiro, Lenient in Theory, supra note 193, at 978.
Holt v. Hobbs, 574 U.S. 352, 364 (2015).

Electronic copy available at: https://ssrn.com/abstract=4424954

158

CALIFORNIA LAW REVIEW

[Vol. 111:101

Perhaps most notable for purposes of this Article are the repercussions of
RLUIPA. While not wanting to overstate the impact of the Act, it has
unquestionably helped protect the religious rights of people in prison without
jeopardizing prison security, which as noted previously, is the cited justification
for upholding rights-restrictions in prison. 390 In short, RLUIPA offers a helpful
“real-world test of the likely effects of more rigorous review” of right-restrictions
as punishment and, thus far, it has succeeded. 391 People in prison often prevail
on RLUIPA claims while losing the same claims brought as violations of the
Free Exercise clause. 392
Despite the success of RLUIPA in the context of the First Amendment, the
Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization,
suggests a more uncertain future for substantive due process challenges to noncarceral punishment. 393 Moreover, regardless of the right involved, it is not
immediately obvious that subjecting all forms of rights-restricting punishments
to great constitutional scrutiny would result in less restrictive punishments or
address the deeper racial and economic inequities endemic to the legal system.
Indeed, rights-based frameworks are sometimes of limited use and are rarely
vindicative for already marginalized groups. 394
The viability of successful constitutional challenges to punishment surfaces
critical questions about the efficacy of purely legal interventions. On one hand,
there is a legitimate concern that heighted scrutiny and greater emphasis on rights
will result in doubling down on the current legal regime and will spur the
“pacification effect” of reform, namely convincing people there is progress when
there is none. 395 There is also no guarantee that applying traditional
constitutional scrutiny will better protect rights than, for example, the Turner
standard or rational basis review. This is partially why progressive scholars
question whether a “rights-based framework” effectively protects the rights of
marginalized individuals.396 As Derecka Purnell explains, prison abolitionists
“don’t need lawyers who will seek to uphold the constitution, because most of
the violence of prisons is constitutional; instead, we need lawyers who will

390. Gary R. Rom, RLUIPA and Prisoner’s Rights: Vindicating Liberty of Conscience for the
Condemned by Targeting a State’s Bottom Line, 44 VAL. U. L. REV. 283 (2009).
391. Shapiro, Lenient in Theory, supra note 193, at 1023.
392. Id.; see also Davila v. Gladden, 777 F.3d 1198, 1212, 1214 (11th Cir. 2015); Lovelace v.
Lee, 472 F.3d 174, 188 n.3 (4th Cir. 2006); Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 983-84, 98889 (8th Cir. 2004); Kikumura v. Hurley, 242 F.3d 950, 956-62 (10th Cir. 2001).
393. Dobbs v. Jackson Women’s Health Org., 142 S.Ct. 2228 (2022) (overturning Roe v. Wade
as unsupported by the Substantive Due Process Clause of the Fourteenth Amendment)
394. Paul D. Butler, Poor People Lose: Gideon and the Critique of Rights, 122 YALE L.J. 2176,
2196–97 (2013); Weisburd, Carceral Home, supra note 191, at 48.
395. Butler, The System is Working, supra note 32, at 1467.
396. Roberts, supra note 229, at 107. See also supra note 32; Dolovich, Coherence of Prison
Law, supra note 296, at 303 (2022) (observing that “prison law’s moral center of gravity” tilts so far in
the direction of the government that constitutional claims only win “in the most extreme cases, leaving
the prison environment largely free of judicial regulation.”).

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

159

betray the power of the constitution.” 397 The Constitution, according to this view,
offers little solace for historically oppressed people and instead is more often a
tool of racial, economic, and social subordination.398 Indeed, the argument to
reject punishment exemption implicitly accepts the legitimacy of some
punishment—if limited—and the continued existence of the criminal legal
system. 399
On the other hand, deploying reimagined constitutional arguments to
challenge the rights restrictions associated with punishment may be an example
of what Professor Dorothy Roberts calls, “abolition constitutionalism.”400
Professor Roberts suggests that “prison abolitionism can craft an approach to
engaging with the Constitution that furthers radical change” by using the
Constitution to expose hypocrisy, while recognizing that the existing legal
system will not bring about freedom for the people historically subordinated by
the criminal legal system.401 Under this approach, advocates might challenge
punishment exemption or expose its hypocrisy to further the goal of abolition,
which is to shrink and ultimately eliminate the carceral state. 402 Even if these
arguments have limited purchase with the post-Dobbs Supreme Court, there may
be greater success with advocacy efforts aimed at state courts, state legislatures
and agencies amenable to policy changes that limit (or eliminate) the rightsrestricting nature of non-carceral punishments.
The Reconstruction Amendments, in particular, can be deployed in the
project to challenge rights-restricting punishments. These amendments were
“inspired by antislavery beliefs” and were “designed to extend to all people the
right to have autonomous life choices of the kind that slavery had so cruelly
restricted.”403 As W.E.B. Du Bois explained, “[t]he abolition of slavery meant
not simply abolition of legal ownership of the slave; it meant the uplift of slaves
and their eventual incorporation into the body civil, politic, and social, of the
United States.” 404 Although the Punishment Clause of the Thirteenth
Amendment “allows for the imposition of compelled labor as punishment for a
397. Micah Hershkind, Some Reflections on Prison Abolition, MEDIUM (Dec. 7, 2019),
https://micahherskind.medium.com/some-reflections-on-prison-abolition-after-mumi-5197a4c3cf98
[https://perma.cc/4LFF-4QJF] (emphasis omitted) (quoting Derecka Purnell).
398. Roberts, supra note 229, at 106; Paul D. Butler, Poor People Lose: Gideon and the Critique
of Rights, 122 YALE L.J. 2176, 2196 (2013); Amna A. Akbar, An Abolitionist Horizon for (Police)
Reform, 108 CALIF. L. REV. 1781, 1790 n.22 (2020).
399. See Levin, supra note 12, at 1427 (Suggesting that “seeing the carceral state as uniquely
troubling would and should require an account or theory of the non-carceral state” (emphasis in
original)); Ristroph, supra note 12, at 3 (cautioning that a focus on “exceptionalism” then “makes it
difficult or impossible to contemplate a world without criminal law”).
400. Roberts, supra note 229, at 112.
401. Id. at 108.
402. Id. at 109. See also Brandon Hasbrouck, The Antiracist Constitution, 102 B.U. L. REV. 87,
129 (2022).
403. Davis, supra note 236.
404. W.E.B. DU BOIS, BLACK RECONSTRUCTION IN AMERICA 189 (Russell & Russell 1956)
(1935).

Electronic copy available at: https://ssrn.com/abstract=4424954

160

CALIFORNIA LAW REVIEW

[Vol. 111:101

crime, it still does not permit the badges and incidents of slavery,” 405 which
rights-restricting punishments are. The goal of the amendments, as Professor
Peggy Cooper Davis explains, “was not just to reunite the states, but to recreate
the polity so that citizenship would, first, be universal, and second, encompass
the liberties that slavery had denied.” 406 This understanding of the
Reconstruction Amendments is consistent with the reasons to reject punishment
exemption, discussed supra.
Admittedly, while applying traditional constitutional scrutiny to
punishment may find jurisprudential support in the Reconstruction
Amendments, and RLUIPA provides an instructive case study, there are
additional reasons to be skeptical of legal or legislative solutions. Progressive
judges are often the most powerful and vocal proponents of alternatives to
incarceration and may be less receptive to challenges. Likewise, legislative
responses to the rights-stripping nature of non-carceral punishments may be
equally unrealistic as prison-alternative programs are often viewed as, and
sometimes are, politically viable solutions to mass incarceration.407 Part of the
challenge is that many of the alternatives to incarceration were conceived of by
police, prosecutors, and courts—all institutional actors reluctant to give up
power. 408 Ways of addressing punishment exemption that do not depend on legal
or legislative interventions is the topic I turn to next.
C. New Lessons for Decarceration
Given growing bipartisan interest in alternatives to incarceration and the
perceived benevolence of non-carceral punishments, it is imperative to reckon
with the unconstitutionality of rights-stripping punishments. Rejecting
punishment exemption has both normative and pragmatic implications for
decarceration efforts.
Normatively, the concept of decarceration has been, at least to some degree,
coopeted to include a range of rights-restricting punishments imposed in the
name of decarceration.409 As my empirical research demonstrates, however,
these rights-restricting punishments run counter to the original goals of the
decarceration movement, which were defined as “cutting of ties to the criminal
(in)justice systems, including parole and probation, [and] utilizing the services
405. Brandon Hasbrouck, The Antiracist Constitution, 102 B.U. L. REV. 87, 145 (2022).
406. Peggy Cooper Davis, Neglected Stories and Civic Space, 7 WASH. & LEE RACE & ETHNIC
ANC. L.J. 45, 48 (2001).
407. See generally RACHEL BARKOW, PRISONERS OF POLITICS: BREAKING THE CYCLE OF MASS
INCARCERATION (2019).
408. See, e.g., Cynthia Godsoe, The Place of the Prosecutor in Abolitionist Praxis, 69 UCLA L.
REV. 164, 213 (2022) (arguing that progressive prosecutors cannot reform the legal system from the
inside).
409. See Arnett, supra note 15, at 663; SCHENWAR, supra note 15, at 57; McLeod, Decarceration
Courts, supra note 15, at 1671 (arguing that criminal justice surveillance mechanisms, specifically via
electronic ankle monitors, perpetuate social harm despite claims that they are more moderate forms of
punishment).

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

161

of community groups on a contractual basis.” 410 Although non-carceral
punishments are often heralded as bipartisan decarceration efforts, the rightsstripping nature of these punishments in fact undermine truly progressive,
decarcerative goals.411
In at least some respects, exposing the illegality of non-carceral
punishments offers purchase, albeit modest, for reformers and abolitionists
committed to “[g]radually reducing sanctions even while advocating their
abolition,” which “is not contradictory if we continue to reduce until they are
eliminated.” 412 There is also value in challenging the premise that some people
are protected by the Constitution and others, in particular poor people and people
of color convicted of crimes, are excluded.413
Challenging rights-violating punishments should also force a recalibration
of what is considered the appropriate baseline for evaluating punishment that
occurs outside of prison. Non-carceral punishment is most often compared to
prison—and the extent to which non-carceral alternatives are less harsh than
prison. But perhaps that is the incorrect baseline. When contemplating
alternatives to incarceration, the baseline should be freedom from all forms of
carceral control and surveillance.414 The ideal presumption should be that if
someone is not in prison, they should be free. 415
Pragmatically, decoupling decarceration from state-imposed non-carceral
punishment could mean that we rely instead on social structures of support and
community self-care models, all of which are separate from criminal law
institutions. 416 As Professors Monica Bell, Katherine Beckett, and Forrest Stuart
explain, rather than social services embedded within the criminal justice system,

410. ROBERT BROWN, SCOTT CHRISTIANSON, LYNN COBDEN, FAY HONEY KNOPP, JANET
LUGO, VIRGINIA MACKEY, VINCENT MCGEE & SHARON SMOLICK, INSTEAD OF PRISONS: A
HANDBOOK
FOR
ABOLITIONISTS
(1976),
https://www.prisonpolicy.org/scans/instead_of_prisons/chapter5.shtml [https://perma.cc/P92K-U84C].
411. See Benjamin Levin, The Consensus Myth in Criminal Justice Reform, 117 MICH. L. REV.
259, 268 (2018) (arguing that part of the reason critics cannot achieve criminal justice reform is because
they are talking about two fundamentally different problems, i.e., mass incarceration versus
overcriminalization); see also Allegra M. McLeod, Beyond the Carceral State, 95 TEX. L. REV. 651,
666 (2017) (reviewing MARIE GOTTSCHALK, CAUGHT: THE PRISON STATE AND THE LOCKDOWN OF
AMERICAN POLITICS (2015).
412. BROWN, ET AL., supra note 410.
413. See Fanna Gamal, The Racial Politics of Protection: Critical Race Examination of Police
Militarization, 104 CALIF. L. REV. 979, 1006 (2016); Monica C. Bell, Police Reform and the
Dismantling of Legal Estrangement, 126 YALE L.J. 2054, 2057 (2017).
414. There is a related and important question about whether punishment can ever be consistent
with freedom and when, if ever, violence should be used to express moral judgements. I do not purport
to resolve these questions, only to highlight their existence. Alice Ristroph’s work thoroughly and
thoughtfully explores these important questions. See Alice Ristroph, When Freedom Isn’t Free, 14 NEW
CRIM. L. REV. 468, 478 (2011); Ristroph, The Wages of Criminal Law Exceptionalism, supra note 12,
at 8.
415. SCHENWAR, supra note 15, at 23.
416. McLeod, Prison Abolition, supra note 33, at 1163, 1228.

Electronic copy available at: https://ssrn.com/abstract=4424954

162

CALIFORNIA LAW REVIEW

[Vol. 111:101

sources of support may come from investments in the welfare state, safety
production within communities and neighborhoods, and racial reparations. 417
To be sure, there is reason to be skeptical that “criminal law and its
pathologies [are] clearly distinguishable from any imagined alternative.” 418
Scholars have cautioned that carceral logic and punitiveness are embedded in
many systems that operate adjacent to, but outside, the criminal system (such as
housing courts, schools, family law, welfare responses, and others). 419 Within
the criminal legal system, Professor Jessica Eaglin examines three examples of
“neorehabilitation” efforts—drug courts, parole revocation reform and early
release reform—to make the case that these reforms are simply a rhetorical shift
that keep in place an incapacitation regime.420 The reality that carceral logic
extends well beyond prison walls is all the more reason to treat all state action
the same for purposes of constitutional rights. All state action, such as
punishment, civil sanctions, welfare policies, or regulations, should be subject to
the same level of constitutional scrutiny.
Thanks to the work of grassroots movements and community organizers
and activists, examples of decarceration decoupled from the state abound. In
Northern California, Silicon Valley Debug, a non-profit run by and for people
impacted by the criminal legal system, began the Community Release Project.
The project drives people to and from court dates and helps people navigate
access to social services and provides re-entry support. 421 As Silicon Valley
Debug’s Founder Raj Jayadev explains, to “tap into this natural set of community
resources can be the way out of the false dichotomy of incarceration or
supervision.” 422 The New Way of Life Reentry Project in Los Angeles provides
another example. That program is not funded or run by the government and
provides “housing, case management, pro bono legal services, advocacy, and
leadership development for people rebuilding their lives after incarceration.” 423

417. Monica C. Bell et. al., Investing in Alternatives: Three Logics of Criminal System
Replacement, 11 UC IRVINE L. REV. 1291, 1294 (2021).
418. Levin, supra note 12, at 1385.
419. Id. See e.g., SCHENWAR, supra note 15, at 5; DOROTHY ROBERTS, TORN APART (2022);
Murray, Marriage as Punishment, supra note 154; S. Lisa Washington, Essay: Survived & Coerced:
Epistemic Injustice in the Family Regulation System, 122 COLUM.L. REV. 1097 (2022); Nicole
Summers, Civil Probation, STAN. L. REV. (forthcoming 2023).
420. Jessica M. Eaglin, Against Neorehabilitation, 66 SMU L. REV. 189, 222 (2013).
421. Ray Jayadev, Decarceration Doesn’t Have to Mean Supervision Expansion – The Santa
DE-BUG
(Sept.
16,
2021),
Clara
County
Story,
SV
https://www.siliconvalleydebug.org/stories/decarceration-doesn-t-have-to-mean-supervisionexpansion-the-santa-clara-county-story [https://perma.cc/SHR7-WHCP].
422. Id.
423. About Us, A NEW WAY OF LIFE, https://anewwayoflife.org/ [https://perma.cc/HH9BP9KT].

Electronic copy available at: https://ssrn.com/abstract=4424954

2023]

RIGHTS VIOLATIONS AS PUNISHMENT

163

CONCLUSION
As the nation grapples with defining the “new normal” post-COVID-19
pandemic, a similar question persists in the criminal legal system: what is the
“new normal” punishment after a wave of new non-carceral punishments has
replaced prison? As this Article suggests, the new normal is not brick and mortar
prisons as the archetypal form of incarceration and punishment. While mass
incarceration shows no sign of abating, new forms of non-carceral punishment
are proliferating. Today, people in the criminal legal system experience an evergrowing web of carceral and non-carceral punishments, all of which entail the
deprivation of fundamental rights that would be unconstitutional if imposed
outside the punishment context. And yet, these non-carceral punishments
continue to escape traditional constitutional scrutiny. As a result, the
disenfranchisement of people convicted of crimes persists and further entrenches
the economic, gender, and racial inequity that has long been part of the fabric of
the criminal legal system.
But the new normal need not—and should not—include exempting
punishment from traditional constitutional review. Punishment that infringes on
constitutional rights should be viewed for what it is: state action subject to the
corresponding and applicable constitutional review applicable outside of the
punishment context. As we reckon with the future of the carceral state, including
the potential for true decarceration, the illegality and illegitimacy of rightsviolating punishments cannot be ignored.

Electronic copy available at: https://ssrn.com/abstract=4424954