Shackles before Sentencing: The Global Positioning System as a Means of Pretrial Restraint

Article excerpt

I. 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.

II. 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. …