In recent years, legal commentators have chronicled the accelerating automation of the criminal process - technologically sophisticated forms of proof, more easily provable offenses, and plea bargaining that fast-tracks adjudications and sentencing. Yet this account obscures a second more invisible system operating beyond the rules that typically constrain police, prosecutors and judges: the increasing automation of reincarceration for the four million people on community supervision (including pretrial release, probation, and parole). For them, invasive person-specific surveillance technology (such as GPS tracking, cellphone surveillance and blood alcohol monitoring) detect easily provable technical violations that facilitate a true “trial by machine” unprecedented in the legal system.
This project analyzes the uniquely mechanized definition, detection, proof, and adjudication of community supervision violations, which account for almost half of all prison admissions. Drawing on recent statutory reforms, case law, and an original set of public records, it identifies a symbiotic relationship between the availability and capability of these technologies, the hyper-technical nature of the release conditions they enforce, the increasing lack of judicial discretion and oversight, and the absence of procedural and substantive rights afforded to individuals facing revocation.
People on community supervision are the proverbial miner’s canary for automated adjudications that are both more technically advanced and less constrained. Their experience reveals what happens when the government has seemingly perfect machine-generated proof to justify incarceration in settings with little adversarial scrutiny and few individual rights. Likewise, the automation of reincarceration reveals how community supervision, as well as other contexts where individual rights are limited, such as prisons and the immigration system, are increasingly fertile testing grounds for new surveillance technologies.
Kate Weisburd is a professor of law at UC Law San Francisco, where she teaches and writes in the areas of criminal investigation and adjudication, civil rights, and emerging technology. Professor Weisburd’s research focuses on the changing dimensions of criminal procedure and punishment and how these shifts impact inequity and privacy. Her recent scholarly work has appeared in the California Law Review, Virginia Law Review, Northwestern Law Review, Washington University Law Review, Boston University Law Review, Iowa Law Review, North Carolina Law Review, and the UCLA Law Review, and she has written for the Marshall Project, the LA Times, as well as other mainstream media.
Sponsoring Organization(s)
Information Society Project