How Should the Supreme Court Handle Warrantless GPS Tracking?

One of the most anticipated decisions of the current U.S. Supreme Court term is United States v. Jones, which was argued last fall (transcript here).  The case concerns Fourth Amendment protections from GPS tracking of automobiles.   The lower court, the D.C. Circuit, held that the government was prohibited from placing a GPS tracking device on the defendant’s car without a warrant and tracking his movements 24 hours a day for four weeks.  For the D.C. Circuit, it was crucial that the tracking was so extensive, which creates the possibility of a very fact-bound affirmance.  Alternatively, the Court might try to draw some type of bright-line rule that would be of greater assistance to lower courts in deciding future cases, either favorably to GPS tracking or otherwise.

As the Court continues to sort out these issues, the Justices might benefit from reading a new note in the Marquette Law Review by Justin Webb.  Justin’s paper, entitled “Car-ving Out Notions of Privacy: The Impact of GPS Tracking and Why Maynard is a Move in the Right Direction,” argues in favor of the D.C. Circuit’s approach.  The abstract appears after the jump.

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Private Prisons and Accountability

Last week, in Minneci v. Pollard (No. 10-1104), the United States Supreme Court held that employees of privately run federal prisons cannot be sued for money damages for violations of constitutional rights.  By coincidence, last week also saw the release of a new report on private prisons by the Sentencing Project.  The report raises a multitude of concerns with private prisons, which may leave the reader troubled that the Supreme Court has now chosen to diminish the accountability of for-profit jailers.

Here are the (quite critical) conclusions of the Sentencing Project:

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Delay in Criminal Procedure: What’s Good for the Goose Is . . . Well, Never Mind

Earlier this week, in Gonzalez v. Thaler (No. 10-895), the Supreme Court rejected Rafael Gonzalez’s pro se habeas corpus petition because it was filed about five weeks too late.  The Court did not comment on the deep irony of this decision: what Gonzalez was complaining about in his petition — the issue that the Court refused to address on the merits — was a ten-year delay between the time that he was charged and the time that he was brought to trial, allegedly in violation of his Sixth Amendment right to a speedy trial.  That’s right — ten years, occasioned mostly by a six-year delay by the government in initiating extradition proceedings.  What’s an extra five weeks of delay by the defendant in a case that has already been delayed far longer by others?

Pretrial delay by the government and postconviction delay by the defendant are, of course, governed by different legal rules.  The government gets the very malleable and forgiving multifactor test of Barker v. Wingo.  (Depending on the jurisdiction, there may also be a somewhat more rigorous statutory test.)  The defendant, on the other hand, faces (for purposes of federal habeas) the strict one-year statute of limitations of 28 U.S.C. § 2244(d)(1)(A).  It was this one-year deadline that Gonzalez missed by five weeks.

To be sure, the priorities of the criminal-justice system appropriately shift after conviction, justifying different approaches to delay.

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