criminal law

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


As indicated in an Orlando Sentinel Article in 2015,  reinstatement of electronic monitoring via Global Positioning System is not being considered at this time. However, we never know what the future could holds so it is good for lawyers to understand the arguments behind this issue.

AUTHOR: Blair Jackson, JD

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. Global Positioning Systems have become indispensable tools aiding drivers of automobiles to safely and efficiently reach their destinations. Global Positioning Systems are also being utilized with greater frequency in our nation’s criminal justice system. One notable use of a Global Positioning System is to gather information about a suspect in a criminal case, which has recently been examined in State v. Jones. Additionally, Global Positioning Systems are used routinely by our courts to monitor the travel of criminal defendants once they have been charged with a crime and, in some circumstances, as a condition of a sentence.

This article discusses the use of a Global Positioning System as both a supplement or, in some cases, substitute for standard bond conditions in criminal cases. Its technology offers obvious benefits to courts seeking to keep the criminal defendant away from a victim and to keep close tabs on a defendant’s whereabouts. Given the heightened level of intrusion that exists when an electronic device is attached to an individual, do our courts have carefully drafted guidelines that must be established before such a device may be implemented?

This article explores this question by looking at criteria (or the lack thereof) utilized by courts in Alabama, Oklahoma and Arizona to examine whether the individual’s constitutional rights are being appropriately safeguarded when Global Positioning System monitoring becomes an issue in the pretrial phase of a criminal proceeding. The article concludes that most states have little to no legislation that might guide a court when determining when a Global Positioning System should be appropriately applied, and suggests specific requirements that would at least be somewhat analogous to conditions of bond in a criminal case.

Click to read entire law review



criminal law

INSANITY DEFENSE: LOCKED UP WITHOUT “PROOF BEYOND REASONABLE DOUBT” with no release date– a true deprivation of liberty


Author: Leslie Ann Ferderigos J.D.

INSANITY DEFENSE? REALLY? Lawyers, is the Insanity defense, really the best option for your client? If a defendant’s insanity defense relieves them from conviction, what happens next? Did you really get liberty for your client? Post-acquittal commitment to mental institutions can be a far greater deprivation of liberty then serving a fixed term sentence. The confinement of an insanity acquitee in a mental hospital, based soley on the trial court’s finding of insanity by a preponderance of the evidence, may law until he has regained sanity or I no longer dangerous. Thus, the defendant has now been able to be locked up indefinitely without the protection of a “proof beyond reasonable doubt standard”. Additionally, the defendant no longer gets to make the argument that his Due Process rights have been violated. This type of confinement is not considered to deny due process even if the result is confinement for a period longer than the maximum period of incarceration carried by his offense. Nor is the insanity acquitee entitled, at the end of the statutory maximum incarceration period, to a civil commitment hearing at which proof of his insanity would have to be established by clear and convincing evidence. [Jones v. United States, 463 U.S. 354 (1983)

STATE SAYS: YES,WE CAN LOCK YOU UP, HERE IS WHY! Underlying the insanity defense is the assumption that those who commit criminal acts while insane should not be held criminally responsible for their behavior. To the extent that mental impairment is, in some sense, “responsible” for an individual’s proscribed behavior, treatment, and not punishment, is acknowledged to be society’s appropriate response. Guilty, but mentally ill convicts have a “Right to Treat” under the Constitution. A long line of cases has held that the fourteenth amendment mandates treatment of civilly committed mental patients, sexual psychopaths and juvenile offenders, although the Supreme Court has not expressly confirmed their reasoning.[1] Thus, the idea behind taking someone’s liberty away lies on civil commitment as treatment rather then punishment.

In Donaldson v. O’Connor[2], the Fifth Circuit held that civil commitment of persons found mentally ill and dangerous involves a “massive curtailment of liberty,” which triggers strict due process analysis. The court concluded that civil commitment satisfies due process only if treatment accompanies confinement.[3] It identified two important state interests underlying civil commitment: protection of society and rehabilitation of the mentally ill. The court concluded that the state may legitimately confine an individual pursuant to itsparenspatriae and police powers if it provides treatment. “To deprive any citizen of his or her liberty upon the altruistic theory that the confinement is for humane therapeutic reasons and then fail to provide adequate treatment violates the very fundamentals of due process.”[4]‘ A majority of the circuits have relied upon or extended the Donaldson holding.’

Lawyers, make sure your client knows that getting off on the insanity defense, doesn’t necessarily buy your client freedom. In fact, your client lose their liberty forever.

This blog is meant to be a short writing to introduce an issue within criminal law. I encourage you to expand more into this area for a thorough understanding.












[2] 493 F.2d 507 (5th Cir. 1974), afdon other grounds, 422 U.S. 563 (1975).

[3] Id. at 520 (quoting Humphrey v. Cady, 405 U.S. 504, 509 (1972) (civil confinement involves “massive curtailment of liberty”)); see also Addington v. Texas, 441 U.S. 418 (1979) (massive curtailment of liberty implicates due process).

[4] Donaldson, 493 F.2d at 520.