Abstract
Incarceration has become the norm for those who assert their innocence. A staggering number of defendants are incarcerated prior to the adjudication of their cases—a reality that has become a central paradox of an American criminal justice system which holds axiomatic the presumption of innocence. Recent attempts to address pretrial mass incarceration through bail reform and the COVID-19 pandemic compassionate release programs have embraced digital surveillance, resulting in unintended and little-understood consequences.
This Article examines how the expanded use of pretrial GPS surveillance is radically changing the presumption of innocence by implicating punitive measures absent constitutional protections and amplifying the racial disparities in our criminal justice system. Largely viewed as a substitution for physical detention and therefore a less onerous intrusion on a defendant’s liberty, pretrial GPS surveillance erodes fundamental liberties under the guise of criminal justice regulation. These highly racialized but invisible repercussions include harms to physical and psychological health, freedom of movement, privacy, and future economic self-determination. I argue that, in light of these substantial harms, courts must examine how they evaluate technological surveillance, affording defendants substantive and procedural due process protections where there currently are none.
Part I of this Article charts the ways in which bail reform and the COVID-19 pandemic-related compassionate release programs have resulted in the expansion of pretrial GPS monitoring far beyond the footprint of physical incarceration. Part II, examining an empirical case study as a basis, details the specific and racialized harms imposed by technologically-mediated restraint. Part III offers a substantive and procedural due process framework for how courts should weigh these harms. Finally, I argue for a re-assessment of United States v. Salerno to recognize future dangerousness as a fundamentally racialized concept that, guided by increasingly sophisticated means of constant surveillance, oversteps the boundary between regulatory and punitive purposes.
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