Exceptional Punishments No one should be made to give up their rights in exchange for being spared from prison.

By Kate Weisburd 

The same scene unfolds in criminal courtrooms across the country every day. After someone has been found guilty by a jury or pled guilty, a judge imposes a sentence. The judge sometimes sentences them to prison, but often the judge sends them to a halfway house, treatment program, or other form of court supervision outside of prison.

As punishments, these non-prison sentences involve a litany of rules and restrictions that strip people of basic constitutional rights. Over the years, I have collected and analyzed hundreds of public records containing the rules governing people on various forms of court supervision. 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. Restrictions on where people can live, with whom they can live, whom they may marry, and how they may parent are also common, as are limitations on travel, work, and religious life. As part of non-prison punishments, courts commonly order people to participate in religious drug treatment programs such as Alcoholics Anonymous (AA), and successful completion of these programs might require individuals to sign self-incriminating “acceptance of responsibility” statements.

My experience defending young people in California’s juvenile delinquency courts allowed me to see firsthand how non-prison punishments were not really alternatives to incarceration, but alternative forms of incarceration, or prison by another name.

Yet can the deprivation of basic constitutional rights—such as the rights to marry, parent, worship, and protest—really be imposed as direct punishment for a crime in lieu of prison? Is there a punishment “exception” to the Constitution? As I claim in a forthcoming article in the California Law Review, the answer must be no: there is no legal justification for rights-violating punishments to escape traditional constitutional scrutiny.

Because non-prison punishments are often justified as decarceral in spirit, the illegality of how they strip away basic rights has often been overlooked. This oversight is hardly surprising. Prison, after all, involves significant limitations on privacy, movement, and basic autonomy. 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, or speak, as direct punishment? Courts have too often ignored this question, but its answer is not as obvious as it might seem.

To be sure, the deprivation of rights has always been a mainstay of criminal punishment, yet advances in surveillance technology, along with the influence of private “community corrections” entrepreneurs, has created an ever-more expansive and invasive web of rights-restricting non-prison punishments. While reform-minded pundits on both the left and the right often justify these punishments as a route toward ending mass incarceration, these punishments instead risk reinforcing what scholars 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.

There is no legally sound justification for exempting rights-restricting punishments from traditional forms of constitutional scrutiny—both within prison and outside. A criminal conviction does not give the state carte blanche to deprive people of rights so long as those deprivations do not run afoul of the Eighth Amendment’s prohibition on cruel and unusual punishment. As the Supreme Court declared in 1973, there is “no iron curtain drawn between the Constitution and the prisons of this country.” There is also no such curtain between the Constitution and other forms of punishment. Despite this strong categorical language and robust—albeit often inadequate—body of law governing prison conditions, non-prison punishment continues to extinguish rights and escape constitutional scrutiny. Why?

Either implicitly or explicitly, judges, prosecutors, and reformers defend non-prison punishments along similar lines: These non-prison punishments may be another form of incarceration, but they are still better than prison. Yet, as I argue, better-than-prison is a low threshold and is neither legally nor logically sound. Just because a criminal sanction is better than prison does not make it constitutional.

There are two obvious objections to my position that non-prison punishments illegally strip people of rights. The first is that prison is worse but perfectly legal. Courts, scholars, and policymakers often evaluate rights-stripping punishments through the lens of prison: If rights are restricted in prison, anything less restrictive outside of prison must be legal. Yet it does not follow that anything less restrictive than prison is per se constitutional. As the Ohio Supreme Court explained, simply because the state “might have incarcerated a defendant does not, in itself, justify” the imposition of any restriction that would have also applied in prison. And, indeed, given the lack of specific laws permitting a loss of rights—laws that do exist with respect to prison—erasing rights as part of non-prison punishments appears to be illegal.

The second objection to my argument pertains to decarceration: But for non-prison punishments, people would remain in prison. It is tempting to assume that, were it not for non-prison punishments, even more people would be incarcerated. Yet in a world without non-prison punishments, there is no convincing evidence that the same people would otherwise be incarcerated. Some may, but many would not. Conversely, some non-carceral punishments, such as parole and federal supervised release, are never substitutes for incarceration but are imposed in addition to, not in lieu of, incarceration. It is rarely a one-to-one exchange between one day in prison and one day subjected to non-carceral punishment.

More fundamentally, the fact that some non-prison punishments are experienced as less harsh than prison does not justify punishments that violate constitutional rights. As Michelle Alexander explains in the context of electronic ankle monitoring, “digital prisons are to mass incarceration what Jim Crow was to slavery.” She elaborates that if an enslaved person had been presented with a choice between continued slavery or living under Jim Crow, they would have certainly picked Jim Crow—but that choice does not justify Jim Crow. By the same token, simply because non-prison punishment is less harsh than prison does not justify punishments that otherwise violate the Constitution.

The growing bipartisan interest in alternatives to incarceration—and the perceived benevolence of non-prison punishments—makes it imperative that we reckon with the unconstitutionality of rights-stripping punishments.

All punishment, including imprisonment, is state action and this means that rights-stripping punishments should be subject to traditional constitutional scrutiny. Restrictions on speech should be subject to traditional First Amendment scrutiny, restrictions on movement should be subject to Fourth Amendment review and Due Process protections, and so forth. Prison sentences are also not exempt. A prison sentence, after all, is also Fourth Amendment seizure (people in prison are clearly “seized”) and should trigger Fourth Amendment scrutiny. It may be that a seizure that occurs in prison is “reasonable” under Fourth Amendment law, but not because the Fourth Amendment does not apply to people in prison. In fact, it does.

Of course, there is reason to doubt that this constitutional argument will convince all judges—and that, even if it convinced some, it would be upheld by the Supreme Court, given the Court’s present composition. Yet there is still value in challenging the premise that some people are protected by the Constitution while others—in particular, people convicted of crimes—are excluded.

Challenging rights-violating punishments also forces a much-needed recalibration of the appropriate baseline for evaluating punishment that occurs outside of prison. The better-than-prison justification assumes that prison is always the alternative, but this is a false binary and an incorrect baseline. When contemplating alternatives to incarceration, the baseline should be freedom from all forms of carceral control and surveillance. The ideal presumption should be that if someone is not in prison, they should be free.

To be sure, as others have cautioned, carceral logic and punitiveness are embedded in many public institutions that operate adjacent to, but technically outside of, the criminal system (such as subsidized housing, schools, family law, welfare responses, and hospitals). But the reality that carceral logic extends well beyond prison walls is all the more reason to treat all state action the same for purposes of constitutional rights. All state action, such as punishment, civil sanctions, welfare policies, and regulations, should be subject to the same level of constitutional scrutiny. 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.

This essay was adapted by the author from a forthcoming article in California Law Review.

Kate Weisburd

Kate Weisburd is an associate professor of law at George Washington University School of Law, where her research focuses on surveillance of people in the criminal legal system.

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