Shackles before sentencing: the global positioning system as a means of pretrial restraint.

AuthorJackson, Blair T.
  1. INTRODUCTION

    What do famous Hollywood starlets Lindsay Lohan and Paris Hilton have in common with thousands of other Americans? Both have been subject to electronic monitoring via the global positioning system (hereinafter referred to as G.P.S.). Lindsay Lohan was arrested and then subject to G.P.S. monitoring upon her release. (1) She was fitted with a G.P.S. device for her failure to comply with court orders in connection with a violation of probation for her prior DUI arrest. (2) In 2007, Paris Hilton was also fitted with a G.P.S. monitoring device and sentenced to forty days of house arrest for violating her previous drunk driving probation. (3)

    G.P.S. provides a new way of controlling and supervising those accused or convicted of criminal offenses. However, many states that employ G.P.S. monitoring as a method of pretrial restraint have very little in the way of statutory or legislative guidance available to them. This is in stark contrast to decisions in criminal cases concerning setting bail, reducing bail, and sentencing. In most states, when a defendant is placed on bond, the amount of bond is determined using that jurisdiction's bond schedule. Unlike setting bond, a court's decision to require G.P.S. monitoring is usually not pursuant to any fixed set of guidelines. When G.P.S. monitoring guidelines do exist, the state's rules and procedures often do not have enough measurable criteria to ensure its fair implementation. Under these circumstances, G.P.S. monitoring, as a method of pretrial restraint, appears to be ripe for judicial review regarding the potential infringement of the constitutional rights of criminal defendants.

    The absence of a legal yardstick for the use of G.P.S. monitoring as a means of pretrial restraint poses important legal questions that will be discussed here. First, this article will provide a brief description of how G.P.S. monitoring works. Next, this article will contrast the differences between criteria used to determine G.P.S. implementation and criteria used to set bond in a survey of the following states: Alabama, Oklahoma, and Arizona. Finally, this article will discuss the constitutional challenges that may be raised regarding application of G.P.S. monitoring, and will analyze why there are so few cases directed to these types of challenges.

  2. How G.P.S. WORKS

    G.P.S. provides individual location monitoring. (4) G.P.S. technology can track objects and persons through the transmission of electronic impulses. (5) G.P.S. technology has made it easy for people to track almost anything at any moment. G.P.S. devices are often used in car navigation systems, cellular phones, and for tracking the transportation of merchandise shipments. (6) G.P.S. devices are also used to track people. For example, employers can use G.P.S. devices to monitor the movement of their employees. (7) The devices are also used to track Alzheimer's patients. (8) More commonly, G.P.S. devices are used to monitor the movements of criminal defendants both before and after conviction. (9) Individual monitoring programs offer alternative measures of supervision and restraint of criminal offenders. (10)

    G.P.S. monitoring programs vary in design, operation, and application. Some systems only monitor whether an individual is located within a range of certain points. (11) Other G.P.S. devices can pinpoint the exact location of the individual being monitored. (12) These more precise G.P.S. devices may either use passive recordings that are later reviewed by the monitoring agency or they may use real-time observation. (13)

    A G.P.S. works by calculating the distance from a receiver on earth to satellites located in space. (14) The distance between the receiver and the satellites provides a precise gauge of where the receiver is located and is reported by the longitude, latitude, and altitude of the receiver. (15)

    Many states have enacted statutes that authorize some form of electronic location tracking for certain types of criminal offenders on supervised release. (16) Some states do not have statutes in place but rather allow G.P.S. monitoring programs by legislative enactments or executive orders. (17) Those states that use G.P.S. monitoring as a means of restraint in criminal cases routinely use them in situations where individuals have been charged with sexually related crimes. (18) G.P.S. monitoring has also been used in cases involving domestic violence, stalking, (19) and alleged gang activities. (20) In 2008, over 12,000 adults on probation nationwide were tracked by G.P.S. systems. (21) Nearly 8,000 of those people were suspected or convicted sex offenders. (22) Furthermore, G.P.S. tracking is not limited to use solely after a defendant is convicted of his or her crime. G.P.S. tracking can be used before trial to monitor the location of a suspect in a criminal investigation. (23) A court may desire to do so for a myriad of reasons, including, but not limited to, protecting the safety of a victim or ensuring the future appearance of the defendant in court.

    Additionally, use of G.P.S. monitoring provides many advantages to law enforcement. For example, a G.P.S. allows the state to monitor the whereabouts of potential criminal offenders at any given moment. Some systems are so precise that they can locate the monitored individual within three to six feet of his or her actual location. (24) G.P.S. surveillance permits the requisite amount of control and supervision over criminal offenders without a need for physical incarceration. (25) Additionally, releasing offenders with some type of monitoring device allows the state to avoid the costs of housing and feeding criminal offenders--an appealing alternative to overcrowded prisons. (26) Except in the case of indigent defendants, the state may require the offender to pay his or her own expenses with respect to their monitoring. (27)

    Proponents of G.P.S. monitoring also argue that G.P.S. has a deterrent effect. (28) Individuals that are fitted with monitors are usually aware that every move they make is tracked by the G.P.S. and that entering any prohibited area will alert authorities. (29) In a Florida State University study of 75,661 offenders placed on home confinement, offenders tracked by G.P.S. were ninety percent less likely to reoffend than those not electronically monitored. (30)

  3. Is G.P.S. EFFECTIVE?

    1. Does G.P.S. monitoring really prevent recidivism?

      While the advanced technology offered by G.P.S. monitoring has its advantages, it is still fraught with problems that call into question both the effectiveness and fairness of its use. Some opponents questioning the efficacy of G.P.S. monitoring point out that the more commonly used "passive" G.P.S. devices can be subject to delays as long as twenty minutes. (31) G.P.S. monitoring falls into two categories, either "passive" or "active." (32) "Active" G.P.S. systems monitor the individual's movements as they Occur. (33) If the individual steps into a prohibited area, the observer will immediately know and be able to respond. (34) However, under passive monitoring, the individual's movements are recorded and law enforcement later reviews the recording. (35) This review could conceivably occur days later.

      Opponents of G.P.S. monitoring for alleged sex offenders question whether it effectively prevents recidivism. (36) Some electronic ankle monitors can easily be removed. (37) The person can cut off the "bracelet" and commit a new crime in the time it takes for the breach to be detected. (38) Furthermore, some offenders may commit new crimes despite having been fitted with a G.P.S. device. (39) For instance, sex offenders make up a large contingent of people subject to G.P.S. tracking devices, (40) Sex offenders are also noted for having some of the highest rates of recidivism. (41) Because monitoring devices can only monitor the location of the offender, law enforcement cannot track with whom the offender comes into contact. (42) A sex offender seeking to reoffend may lure a victim into his or her home without alerting the authorities, (43) Additionally, some repeat sex offenders may go out and commit new crimes even if they know they will get caught after the fact. (44) These problems with using G.P.S. monitoring during pretrial release may not prevent further offenses by certain high-risk offenders.

    2. Legal Problems with the Implementation and Application of G.P.S.

      G.P.S. monitoring also presents some important legal issues. G.P.S. technology has evolved so fast that United States federal and state courts have not had time to account for the potential legal ramifications of such a new and invasive technology. (45) Consequently, little case law exists in this area. (46)

      Not all states have legislation authorizing the use of G.P.S. devices. (47) Among the states that do have enabling legislation, the statutes and regulations are rudimentary. (48) The existing statutes that govern the use of G.P.S. monitoring tend to cover broad categories of individuals. (49) These statutes and regulations often fail to provide for any individualized evaluation of a criminal defendant's propensity for violence or the possibility of recidivism. (50) Furthermore, because many statutes apply retroactively, criminal offenders with prior convictions may be pulled back into the criminal justice system so that they can be subject to G.P.S. monitoring. (51)

      With regard to sex offenders, the use of G.P.S. tracking devices is no longer limited to those individuals on formal release. Many sexual...

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