Excerpted From: Kate Weisburd, Rights Violations as Punishment, 111 California Law Review 1305 (October 2023) (428 Footnotes) (Full Document)

KateWeisburd.jpegTo 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. 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. 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.

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, have created an even more invasive web of rights-restricting non-carceral punishments. 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,” 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? On one hand, the “right to have rights” is “not a license that expires upon misbehavior,” and non-carceral punishments that restrict rights seem like classic state actions that are unconstitutional “unless ... narrowly tailored to [meet] a compelling state interest.” On the other hand, the rights deprivations inherent in non-carceral 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. Likewise, courts uphold exploitative prison labor and felony disenfranchisement as legal punishments explicitly permitted by the Thirteenth and Fourteenth Amendments. And the deprivation of still other rights, such as the right to bear arms or serve on a jury, is justified as a collateral consequence of a criminal conviction. 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?

In short, is there something special about punishment that justifies what I refer to as “punishment exemption,” 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 lose rights, though there is a more robust, albeit often inadequate, legal regime to evaluate such deprivations. 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. 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 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.

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. Even the label “non-carceral” is imperfect as it fails to capture the myriad ways that distinctly carceral logic defines purported alternatives to incarceration.

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. 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.” 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.

More often, courts 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. These deferential approaches are consistent with Justices Scalia and Thomas's view that states should be afforded deference “to define and redefine all types of punishment, including imprisonment, to [include] various types of deprivations” and that criminal conduct properly extinguishes the right against unwarranted confinement and liberty. In a dissent penned by Justice Thomas and joined by Justice Scalia, the Justices explained 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.” Under this view, it is only the Eighth Amendment that limits punishment.

The problem, however, is that there is no obvious legal basis to exempt punishment from traditional constitutional scrutiny that would otherwise apply. Not only is consent a questionable legal basis, but the “reasonably related” standard is often inapplicable to the non-carceral setting, and classifying the deprivation of rights as a “condition” or “regulation” and not punishment is likewise legally, and factually, unsound. 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. 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 prisoners' rights litigation have helped establish that incarceration does not escape constitutional scrutiny simply because it is imposed as punishment. It may be that many long prison sentences or certain types of non-carceral punishments are constitutional, but it is not because they are exempt from traditional constitutional review.

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, 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, 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. 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 substantive due process problems and vice versa. 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. This divide reflects--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 non-carceral 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 a condition or rule; 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.

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As the nation grapples with defining the “new normal” after the 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 ever-growing 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 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 rights-violating punishments cannot be ignored.

Associate Professor of Law, George Washington School of Law.