Crime Prevention Through Environmental Design

This chapter examines an approach to crime reduction which differs from many others in that it focuses, not on the offender or their reasoning for committing an offence, but upon the environment in which an offence takes place. This approach also differs in its consideration of who should hold responsibility for the reduction of crime, with a focus, not solely upon the traditional criminal justice system agencies, but also upon planners, architects, developers and managers of public space. The approach is based on the presumption that offenders will maximise crime opportunities, and therefore, those opportunities must be avoided (in the first place) or removed (following the emergence of a crime problem). In the 2001 publication ‘Cracking Crime through Design’, Pease introduces the concept of design as a means of reducing crime, but more importantly, the premise that it is the moral responsibility of many different actors and agencies to improve the lives of those who may fall victim to crime, those who live in fear of crime, and (less obviously) those who will, through the presentation of unproblematic opportunities, be tempted into offending. In the case of crime prevention through environmental design (CPTED), it is the planners, designers, developers and architects who risk acting (as Pease paraphrases the poet John Donne) as the gateway to another man’s sin

The Carceral Home

In virtually all areas of law, the home is the ultimate constitutionally protected area, at least in theory. In practice, a range of modern institutions that target private life—from public housing to child welfare—have turned the home into a routinely surveilled space. Indeed, for the 4.5 million people on criminal court supervision, their home is their prison, or what I call a “carceral home.” Often in the name of decarceration, prison walls are replaced with restrictive rules that govern every aspect of private life and invasive surveillance technology that continuously records intimate information. While prisons have always been treated in the law as sites of punishment and diminished privacy, homes have not. Yet in the carceral home people have little privacy in the place where they presumptively should have the most. If progressive state interventions are to continue, some amount of home surveillance is surely inevitable. But these trends raise a critical, underexplored question: When the home is carceral, what is, or should be, left of the home as a protected area? This Article addresses that question. Descriptively, it draws on a fifty-state analysis of court supervision rules to reveal the extent of targeted invasions of intimate life in the name of rehabilitation or an alternative to prison, rendering the home a highly surveilled space. Normatively, it argues that allowing this state of affairs with no corresponding adaptations in legal doctrine is untenable. With the home no longer sacred and no limiting principle to take its place, millions of people are left with no meaningful protection from government surveillance, even (or especially) in their home. Left unchecked, the carceral home further entrenches the precise racial, economic, disability, and gender inequities that often inspire reform efforts. Instead, as this Article recommends, privacy and security must be recognized as positive entitlements separate from physical homes

Sentenced to Surveillance: Fourth Amendment Limits on Electronic Monitoring

As courts and legislatures increasingly recognize that “digital is different” and attempt to limit government surveillance of private data, one group is conspicuously excluded from this new privacy-protective discourse: the five million people in the United States on probation, parole, or other forms of community supervision. This Article is the first to explore how warrantless electronic surveillance is dramatically transforming community supervision and, as a result, amplifying a growing privacy-protection disparity: those in the criminal legal system are increasingly losing privacy protections even while those not in the system are increasingly gaining privacy protections. The quickly expanding use of GPS-equipped ankle monitors, as well as other forms of electronic searches, reflects unprecedented government surveillance that has yet to be regulated, scrutinized, or limited in any meaningful way. This Article explores this phenomenon in its own right but also contends that the expanding disparity in privacy protections is explained by two underappreciated but significant shifts in Fourth Amendment jurisprudence. First, on the theory that defendants “choose” surveillance in exchange for avoiding incarceration, courts increasingly invoke consent to justify otherwise unconstitutional surveillance of people on community supervision. While the debate over criminal justice bargaining is not new, the expanded reliance on consent in this context reveals blind spots in the existing debate. Second, courts also increasingly accept government arguments in favor of otherwise unconstitutional electronic monitoring under a general “reasonableness” standard, as opposed to the traditional “special needs” doctrine. This insidious shift toward “reasonableness” threatens to jeopardize the precise interests the Fourth Amendment was designed to protect. But even under a reasonableness standard, electronic surveillance of people on community supervision should be more circumscribed. Ultimately, this Article reveals how the significance of these two shifts extends beyond electronic surveillance and represents a new frontier of sanctioning warrantless searches without any level of suspicion or exception to the warrant requirement

Rights Violations as Punishment

Is punishment generally exempt from the Constitution? That is, can the deprivation of basic constitutional rights—such as the rights to marry, bear children, worship, consult a lawyer, and protest—be imposed as direct punishment for a crime and in lieu of prison, so long as such intrusions are not “cruel and unusual” under the Eighth Amendment? On one hand, such state intrusion on fundamental rights would seem unconstitutional. On the other hand, such intrusions are often less harsh than the restriction of rights 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, or speak, as direct punishment? Surprisingly, as this Article reveals, existing law offers no coherent explanation as to why rights-violating punishments somehow escape traditional constitutional scrutiny. Yet the question is critical as courts—often in the name of decarceration—increasingly impose non-carceral punishments that deprive people of constitutional right

Carceral Control: A Nationwide Survey of Criminal Court Supervision Rules

The day-to-day operation of criminal court supervision—including probation, parole, and electronic ankle monitoring—is understudied and undertheorized. To better understand the mechanics of these systems, this study comprehensively analyzes the rules governing people on criminal court supervision in the United States. Drawing on the analysis of 187 public records from all fifty states, this study documents how criminal court supervision functions and impacts daily life. In particular, this study examines the various ways that supervision rules limit or restrict privacy, bodily autonomy, liberty, dignity, speech, and financial independence. This study also explores the nature and prevalence of supervision rules across the United States. Ultimately, the analysis of the rules offers empirical evidence that court supervision imposes significant restraints on people’s ability to thrive and, in doing so, risks legitimating the subordination of historically marginalized groups

A Reply to Professor D\u27Amato

In the foregoing article, Professor D\u27Amato has taken issue with a number of arguments I raised in an article published in a recent issue of the Vanderbilt Journal of Transnational Law. In this reply, I attempt to refute his criticisms. The discussion that follows briefly recapitulates my article. I then seek to deal with the points made in Professor D\u27Amato\u27s response one by one. My article addressed an aspect of the relationship between treaties and customary international law. Taking as a starting point the assumption that treaties can be an element of the state practice necessary to constitute customary law, the article inquired whether treaties were so important a form of state practice that one could derive rules of customary law solely from treaties, even in the face of other types of practice coterminous with relevant treaties but inconsistent with them. It concluded that treaties were not such strong determinants of customary law that they could, in effect, overwhelm other types of practice. The article sought to demonstrate this conclusion through three lines of argument. First, it described instances in which customary law had developed rules that ran contrary to existing treaties. Second, it showed that treaties themselves can be modified through practice, arguing that, if a treaty itself is not immune to modification through practice, then customary law can hardly be immune to similar modification merely because treaties exist relating to the area of customary law in question. Third, the article argued that a particular subclass of treaties--those that can be seen as denying the existence of customary rules on the subject governed by the treaty--ought not be seen as constitutive of custom in that they deny the existence of the opinio juris element of custom. This portion of the argument focused specifically on international conventions forbidding states parties to engage in torture and asserted that such conventions, in effect, denied the existence of a duty outside the convention to refrain from torture. Thus, these conventions should not be seen as the basis of a customary rule against torture. Finally, the article addressed certain arguments contrary to those it made

Customary International Law and Torture: the Case of India

This paper examines the contradiction between statements from well-respected sources regarding customary international law as it bears on torture and the actual behavior of states as to torture. It does so by focusing on one state, India. The purpose of the paper is both to make clear the conflict between state behavior and rules that are supposed to be law and to reflect on some of the implications of and conundrums raised by this situation. This paper will discuss the claim that prohibitions against torture and violations of human rights are a part of customary international law, suggesting that they are not, nor should they be