By: Brooke Throckmorton,
It is hard to think of a time when technology was not an integral, driving force in the world. Technology has permeated many crevices of the average American’s daily life. Technology can change how crimes happen, types of evidence available after a crime is committed, how the police investigate a crime, and much more. This article touches on new and potential technologies and how those technologies can affect the criminal justice system, for good, bad, or complicated reasons. It should be noted that each new technology will have both good and bad aspects. “Good” simply means I believe the technology has the ability to be helpful. “Bad” means the technology has a stronger probability (in my opinion) of being manipulated and abused.
I will start with the “good.” There is a new technological system that can detect gun shots and pinpoint their exact location. The gunfire pinpointing system, “ShotSpotter”, uses sensors to detect gunfire in a certain location and “triangulate the location of the incident.” The location can be pinned down to the exact latitude and longitude of where the gun was fired. It is then communicated to police. Since not all criminal activity is reported, these gunfire sensors can insure police arrive on the scene of a crime before someone even dials 911. More potentially helpful technology includes a national registry that can recognize mug shots (by facial recognition technology) in a matter of seconds, and computer-generated risk scores that can be used to decide when to detain arrestees.
Next, the “bad” or potentially dangerous technologies are out there as well. First, there is talk of possible home incarceration technology as opposed to traditional imprisonment in prisons and jails. While home incarceration would involve high technology surveillance equipment like cameras, microphones, and sensors, there is clear potential for abuse of the system. This technology raises many questions such as: How much can technology limit a person’s freedom? Would home incarceration be used for low level offenders (speeding tickets, failure to pay child support, etc.) or all offenses? Two main goals of the criminal justice system are to separate the guilty from the innocent and to deter criminal behaviors with punishment. With that in mind, is being forced to watch Netflix on your couch for ten months truly a punishment? Will home incarceration have the same deterrence effect as prison incarceration? I believe it depends on how the technology is implemented. Another potential issue with technology when it comes to the criminal justice system is probably sitting next to you right now, or maybe you are using it to read this article: your iPhone. Apple released the latest version of the iPhone (iPhone X) in November 2017. The iPhone X uses facial recognition to unlock your phone as opposed to a fingerprint or passcode. The iPhone X facial access raises serious Fifth Amendment issues when it comes to police forcing you to open your phone to obtain incriminating evidence. Basically the Fifth Amendment protects you from being forced (by the police) to unlock your iPhone by using a passcode or pin ID because this is information you know; however, the Fifth Amendment does not (conceivably) protect against being forced to use your face or thumbprint to open your phone because your face and thumbprint are things you are, not things you know. There will need to be litigation (yet to come) to determine the courts’ stance on these issues.
Third, we have the complicated. While there are many complicated technologies, self-driving cars have to be close to the top of the list. Many liability questions pop up when there is a self-driving car involved such as: Who is liable when/if the car crashes? How does the car know to pull over when a police officer requests you to? The good news is self-driving cars are not fully functional on their own (yet). This means self-driving cars still require driver input. Some states are starting to implement laws to regulate self-driving cars. For example, North Carolina has a law mandating that no one under age twelve can ride in a self-driving car without adult supervision. Further, owning a self-driving car does not require a driver’s license. In addition, if the car receives a speeding ticket while in “auto-pilot” mode, the “driver” is responsible for paying the ticket. These self-driving cars are not perfect. This is demonstrated by the fact that there have been many accidents, and a few fatalities, to date. If a self-driving car does not remind you of Black Mirror already, this next bit of information should do the trick. Ford recently filed a patent for an autonomous police car that could potentially decide on its own (via a learning algorithm) whether to issue a citation or a warning for a traffic infraction. While patents do not always come to fruition, it is still a bit “unnerving” to think of an automated police car making decisions that a human being usually exercises judgment over.
Some states have recognized technological advancements by making laws to deal with new technologies. For example, North Carolina recently implemented a law criminalizing flying drones within a certain proximity of a prison. Merely flying a drone near a prison could land you with a misdemeanor; however, if you are trying to smuggle in contraband or weapons, you will be bumped up to felony status.
New technology can be extremely helpful but at some point, we need to question the motives behind it, especially when it comes to the criminal justice system. Just because we CAN create something, does it mean we necessarily SHOULD create it?
 Quora, contributor, How Technology Is Impacting Our Criminal Justice System, Forbes (May 11, 2018), https://www.forbes.com/sites/quora/2017/05/11/how-technology-is-impacting-our-criminal-justice-system/#291183a8226d.
 Doug Irving, How Will Technology Change Criminal Justice?, RAND (Jan. 7, 2016), https://www.rand.org/blog/rand-review/2016/01/how-will-technology-change-criminal-justice.html.
 Quora, supra note 1.
 Corinna Lain, S.D. Roberts & Sandra Moore Professor of Law, University of Richmond School of Law, Criminal Procedure: Investigation Lecture (Feb. 1, 2018).
 See Quora, supra note 1.
 Matt Swider, The iPhone X Release Date This Friday, Thank to ‘Hard Work’, techradar (Nov. 2, 2017), http://www.techradar.com/news/the-iphone-x-release-date-was-meant-for-2018-explaining-apples-odd-triple-phone-launch.
 Kaveh Waddell, Can Cops Force You to Unlock Your Phone With Your Face?, The Atlantic (Sept. 13, 2017), https://www.theatlantic.com/technology/archive/2017/09/can-cops-force-you-to-unlock-your-phone-with-your-face/539694/.
 Jordan Cook, Ford Files a Patent for an Autonomous Police Car, TechCrunch (Jan. 26, 2018), https://techcrunch.com/2018/01/26/ford-files-a-patent-for-an-autonomous-police-car/.
 Gary D. Robinson, New North Carolina Laws Address Longtime Crimes, New Technology, Citizen Times (Dec. 1, 2017), http://www.citizen-times.com/story/news/2017/12/01/new-north-carolina-laws-address-longtime-crimes-new-tech/913069001/.
 See Bill Vlasic, Neal E. Boudette, Self-Driving Tesla Was Involved in Fatal Crash, U.S. Says, N.Y. Times, June 30, 2016, https://www.nytimes.com/2016/07/01/business/self-driving-tesla-fatal-crash-investigation.html.
 Black Mirror (Netflix 2017) (An original Netflix series that depicts what a technological future might look like and implications technology can have on human kind.).
 Cook, supra note 16.
 Robinson, supra note 18.
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