The title of this post is the title of this notable new paper by Kate Weisburd now available via SSRN. Here is its abstract:
Is there a “punishment exception” to the Constitution? That is, can the deprivation of fundamental rights — such as the right to protest, to visit a mosque, or consult a lawyer — be imposed as direct punishment for a crime, so long as such intrusions are not “cruel and unusual” (under the Eighth Amendment)? On the one hand, such intrusions seem clearly unconstitutional unless narrowly tailored to meet a compelling state interest; on the other hand, they seem less harsh than prison. Surprisingly, the answer is not obvious. But the answer is critical as courts increasingly impose new forms of non-carceral punishment, such as GPS-equipped ankle monitors, smart phone tracking, and suspicionless searches of electronic devices. This type of monitoring, what I term “punitive surveillance,” allows government officials and for-profit companies to track, record, search and analyze the location, biometric data and other meta-data of thousands of people on probation and parole. With virtually no oversight or restraint, punitive surveillance strips people of fundamental rights, including privacy, speech, and liberty. Thus far, courts have assumed that such intrusions are merely “conditions” of punishment or “regulatory” measures. As a result, punitive surveillance is subject to almost no limitations.
This Article is the first to argue that these restrictive and invasive surveillance measures are — just like a prison sentence — punishment, and subject to constitutional limits. The Article makes three contributions. First, drawing on original empirical research of almost 300 state and local policies, it reveals the punitive and rights-stripping nature of electronic surveillance of those on court supervision. Second, it explains why courts’ labeling of such surveillance as a “condition” of punishment or a regulatory measure stems from a misunderstanding of this surveillance and the law of punishment. Finally, it makes the case that punishment is still subject to constitutional limits beyond the Eighth Amendment and the Ex Post Facto Clause, as well as other limits. Given the rights at stake, and that punitive surveillance entrenches race and class-based subordination, limiting punitive surveillance is crucial.
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