Paradigms of Restraint
Murphy, Erin, Duke Law Journal
Incapacitation of dangerous individuals has conventionally entailed the exercise of physical control over an actual body: the state confines the person in jail. But advances in technology have changed that convention. A variety of new technologies--such as GPS tracking bracelets, biometric scanners, online offender indexes, and DNA databases--give the government power to control dangerous persons without relying on any exertion of physical control. The government can track the location of a person in real time, receive remote notification that an individual has ingested alcohol, or electronically zone someone into a home or out of a public park. It can prove conclusively that a particular person wore a hat or took a sip from a discarded soda can, or identify a single face in a ten thousand-person crowd. In this day and age, restraint of the dangerous can be as much about keeping people out of a place as it used to be about locking them up in one.
But whereas physical incapacitation of dangerous persons has always invoked some measure of constitutional scrutiny, virtually no legal constraints circumscribe the use of its technological counterpart. Across legal doctrines, courts erroneously treat physical deprivations as the archetypal "paradigm of restraint," and thus largely overlook the significant threat to liberty posed by technological measures. Similarly, little academic attention has been paid to the state's use of targeted forms of non-physical control. Much scholarly interest has focused on the increased use of physical incapacitation as a means of exerting regulatory control over, for example, illegal immigrants, pretrial detainees, or the mentally ill. And an equally vibrant debate surrounds the protection of information privacy in general society. Yet nearly no attention has been paid to the connection between these two developments.
This Article examines the generally unheeded intersection between two well-documented trends: the state's increasing desire to preventively regulate targeted classes of individuals, and its increasing capacity to use innovative technologies, rather than physical incapacitation, to realize that desire. This Article identifies four loosely grouped emerging technologies of control: DNA databasing, electronic monitoring, electronic indexing, and biometric scanning. It then reviews the legal landscape on which they operate and demonstrates that, across the range of doctrines, courts unduly focus on the physical world as the relevant metric against which all restraints are judged. As a result, technologies of restraint are imposed without necessary procedural safeguards. This Article then outlines four concerns peculiar to these kinds of restraints and illustrates how significant concerns are wholly overlooked when the physical world is the determinant referent of comparison. The Article closes by urging greater judicial scrutiny of technological restraint and by laying out a series of potential inquiries that might aid in such an effort.
TABLE OF CONTENTS Introduction I. Technologies of Control A. DNA Databasing B. Electronic Monitoring C. Electronic Indexing D. Biometric Scanning II. Legal Constraints on the Regulation of the Dangerous A. "Regulatory" versus "Punitive". B. Due Process and "Liberty Interests". C. "Reasonable Expectation of Privacy". D. Equal Protection E. Summary III. Four Physics of the Nonphysical World A. Proliferation B. Accumulation C. Unaccountability D. Invisibility E. Summary IV. "Different Constitutional Principles": New Paradigms of Liberty and Restraint A. The Case for Constitutional Regulation B. The Shape of Constitutional Regulation Conclusion
Everybody understands, or at least has a glimmering understanding of, what it means to go to jail. Whether from popular media or personal experience, most people imagine imprisonment as the strongest and most singular instrument of state power. …