The Pixelated Prisoner

Prison Video Links, Court 'Appearance' and the Justice Matrix

Carolyn McKay

• Publisher: Routledge
• Year: 2018
• eBook ISBN: 9781351619240
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Technological linkages between justice and law enforcement agencies are radically altering criminal process and access to justice for prisoners. Video links, integral to an increasingly networked justice matrix, enable the custodial appearance of prisoners in remote courts and are becoming the dominant form of court appearance for incarcerated defendants. This book argues that the incorporation of such technologies into prisons is not without consequence: technologies make a critical difference to prisoners' experiences of criminal justice.

By focusing on the prison endpoint and engaging with the population most affected by video links – the prisoners themselves – this book interrogates the legal and conceptual shifts brought about by the technology's displacement of physical court appearance. The central argument is that custodial appearance has created a heightened zone of demarcation between prisoners and courtroom participants. This demarcation is explored through the transformed spatial, corporeal and visual relationships. The cumulative demarcations challenge procedural justice and profoundly recompose prisoners' legal experiences in ways not necessarily recognised by policy-makers.

Chapter 1

The justice matrix

Technologising criminal justice

Introduction

Digital communication technologies are proliferating throughout civil and criminal justice systems globally, transforming legal procedure, challenging fundamental legal tenets and altering access to justice. Within the criminal justice system, these technologies are generating linkages between justice and law enforcement agencies so that prisons, police stations, correctional facilities, detention centres, courtrooms and legal practitioners are progressively being interfaced with one another, creating a matrix of justice. Audio visual links, or videoconferencing technologies, are integral to ‘collaborative justice partnerships’ that enable coordinated and multi-agency responses (Polycom 2014). Within this emergent justice matrix, prisoners in many jurisdictions increasingly ‘appear’ in court via live video link from spaces of incarceration. They also use such technology to access legal advice and representation as well as for connecting with other professionals. This developing model of criminal procedure and administration represents a fundamental shift in how justice is ‘done’ as the traditional paradigm of the physical presence of the incarcerated defendant within the shared and civic space of the courtroom is displaced by the prisoner’s virtual presence from a custodial situation. Videoconferencing in criminal justice is a disruptive or transformative technology in that it displaces traditional physical practices to radically alter the delivery of legal services and procedure (Susskind 2013; Susskind and Susskind 2015; Mezrani 2015). In essence, we are witnessing a major transformation from face-to-face to ‘face-to-interface’ (Richardson 2010) criminal procedure.

Focus

The Pixelated Prisoner focuses on the impact of communication technologies in criminal justice from the viewpoint of imprisoned defendants. Specifically, the book adopts empirical and theoretical perspectives to articulate the subjective experience of prisoners who ‘appear’ in remote courtrooms from a prison video studio. With this focus on custodial appearance by live video link, the system is interrogated as an emergent prison technology and new observatory of criminality. The book is founded upon my doctoral research at the University of Sydney Law School, completed in 2016, in which my research question was: how does appearance by video link from correctional facilities affect prisoners and their experiences of legal proceedings? As detailed in Chapter 3, the nucleus of my study is the empirical fieldwork I undertook at two correctional centres situated in the Australian state of New South Wales (NSW). During this fieldwork, I interviewed 31 prisoners, both male and female, to gather data regarding their lived experiences of appearing in court by video link from the prison studio, as well as their abilities to access legal advice and representation. These semi-structured interviews sought to provide prisoners with the opportunity to express what they appreciated about video links, as well as what they did not like about that form of communication. As this book will reveal, technologies make a critical difference to prisoners’ experiences of criminal justice and procedural justice.

The growing use of video link technologies is part of a larger trend towards the incorporation of innovative digital technologies and visual displays into criminal procedure (Senécal and Benyekhlef 2009; Sherwin 2011; Carrabine 2012; Susskind 2013; Feigenson 2014; Horan and Maine 2014; McDonald et al. 2015). Technological advancements are changing visual and audio culture in courtrooms (Feigenson and Spiesel 2009; Schofield 2009) with evidence presented via video and closed-circuit television (CCTV) footage, forensic animations akin to computer games (Schofield 2009) and litigation applications or ‘apps’ for tablets (McDonald et al. 2015). The legal profession itself is undergoing a major restructure given the innovations that are occurring in legal services, documentation and outsourcing that have been enabled by the internet (Susskind 2013; Susskind and Susskind 2015). The justice system is therefore witnessing a shift from oral traditions to ‘visual mediation’ (Schofield 2009: 2) and, with such a saturation of technology in daily life and ongoing innovations, we will see more devices in the justice setting (McDonald et al. 2015). Technological assimilation into the legal realm is inevitable and apposite given the integration of screens, mobile devices, emergent platforms and networked communications into twenty-first century human existence, combined with the drive for optimal business flows. Digital technologies are transforming, shaping and mediating human communication and daily life, and the internet is as embedded in our daily lives as electricity (Smith 2014). Forms of videoconferencing have been used in the corporate and education sectors for decades and more recently in medical and mental health areas. An enculturated acceptance of screen-based technology has developed in our society, with the screen becoming internalised in the social conscience, and now in criminal legal process. As Gertner (2003: 773) wrote well over a decade ago, videoconferencing is ‘the next logical step in the high-tech courtroom’. The result is a major alteration of legal practice and process (Donoghue 2017).

Nevertheless, it will be the thrust of this book that the incorporation of such audio visual technologies into the space of prisons and courts is not without consequence: technologies are not benign (Poulin 2003; Donoghue 2017); their operation in justice is not neutral (Rowden 2011); they transform courtroom dynamics (Mulcahy 2011) and raise new concerns (Gertner 2003). Technologies recompose legal process and redefine authority and knowledge (Aas 2004, 2005; Dumoulin and Licoppe 2015). Furthermore, the images generated by visual technologies are not innocuous (Tagg 1988; Biber 2006a; Carrabine 2012), especially when produced in the context of state incarceration and prosecution. In essence, technologies make a difference in recomposing and redefining legal practices and protocols (Licoppe and Dumoulin 2010; Dumoulin and Licoppe 2015), necessitating a re-examination and recalibration of procedure. Technologies do not simply replace the old system, their intervention transforms. With a focus on the criminal justice system and the perspective of the prisoner, this book will argue that this difference is critical for substantive criminal legal proceedings and modes of access to justice. The perspective of prisoners is critical in establishing the differences, both positive and negative, that audio visual technologies make to the criminal justice system.

Objectives

While undertaking prior research regarding the nature of viva voce evidence in murder trials, I became aware of the increasing presence of screens in courtrooms, and the decreasing physical presence of defendants. Driven by a curiosity about the remote world at the other end of the video link, the objectives of this current research are to reveal the hidden prison endpoint of video links.

Significance

Many jurisdictions, particularly the United Kingdom (UK) but also the United States (US), New Zealand (NZ), Canada, and a variety of European countries such as The Netherlands and France, are increasingly integrating videoconferencing technologies into prison and courtroom infrastructures. Much of this technological roll-out, however, has occurred without a critical examination of the practical implications for incarcerated defendants and the potential infringement upon fundamental procedural guarantees – especially the presumption of innocence, the right to a fair and public hearing before an independent and impartial tribunal of law, and the right to confront witnesses – all of which are enshrined in the common law, national (constitutional) law and international instruments such as the European Convention on Human Rights, where relevant.

In undertaking a literature review to establish extant knowledge (Bachman and Schutt 2011) regarding these technologies, I found much previous research had explored the justice sector as a whole, that is, both civil and criminal jurisdictions, or adopted the perspectives of judicial officers and lawyers. Alternatively, the literature related to vulnerable, child or expert witnesses. As such, existing scholarship has generally explored video links as courtroom technologies.

A gap in knowledge was revealed as there has been very limited research directly concerning the perspective and lived experience of prisoners who use video links from spaces of incarceration. Given the many hurdles to researching this population, the dearth of material is not surprising. A paucity of studies of the prison perspective is confirmed by a number of scholars (Poulin 2003; Grunseit et al. 2008; Kluss 2008; Forell et al. 2011; Rowden 2011; Donoghue 2017). For example, Johnson and Wiggins (2006) identified the need for research that describes the extent and use of videoconferencing in criminal proceedings, and behavioural effects on criminal justice participants. Feigenson and Dunn (2003) also expressed the need for empirical research regarding the effects of technologies, while Mulcahy (2008) encouraged further debate on the changing space of criminal law. Ward (2015) argued that empirical research is required to determine the impact of the UK’s virtual courts on defendants. Videoconferencing technologies in criminal justice are an emergent area providing ‘a ripe and largely untapped area for research’, that is required to inform policy-makers (Johnson and Wiggins 2006: 225). Despite international unease at the proliferation of technologies, videoconferencing remains under-analysed globally and ‘the mere process of integrating video conferencing in the core of judicial activities has not given rise to many studies’ (Dumoulin and Licoppe 2015: 6). More optimistically, it appears that there is rising research interest in prisoners’ experiences of digital communication technologies (Scharff Smith 2015). Prisoners’ perspectives have been neglected and research into how they are affected by video link is critical given that the criminal proceedings are all about them (Young 2011).

The overarching standpoint in the assessment of videoconferencing has been from the courtroom perspective: even the language used in the literature constantly references courtroom technologies, although the reality is that video link is now also an emergent prison technology and a tool of penal policy. Videoconferencing does not solely impact courtroom practices and rituals, and so this book aims to delve deeper into the prison endpoint of the technology, as prisons adjust to ‘the demands of the information society’ (Aas 2004: 380). Increasingly, video link is becoming a major portal for prisoners’ interaction with the outside world and the dominant form of court appearance for prisoners, as well as for legal advice, health assessments and family visits, thus replacing in-person visits to prisons by lawyers and families. The prison endpoint perspective presented here is vital given that the essential qualities of prison space and the configuration of the technology differ significantly from the courtroom endpoint.

The Pixelated Prisoner contributes to the evaluation of the qualitative factors that may cumulatively affect prisoners and procedural justice. The Pixelated Prisoner makes an original contribution to extant scholarship regarding communication technologies in the justice sector by revealing insights into the prison endpoint of the video link based on empirical fieldwork data. As I discuss below and in Chapter 3, through a combination of gathering and coding that data, reviewing extant scholarship and undertaking theoretical analysis, I have identified three core themes as a comprehensive and interdisciplinary means to examine the impacts of video technologies on prisoners: spatiality, corporeality and visuality. This book seeks to articulate how video link technologies challenge criminal justice in ways that policy-makers may overlook in the quest to achieve cost-cutting and expediency.

As prison-to-courtroom audio visual technologies are rolled-out internationally, it is proposed that my research has significance for jurisdictions beyond Australia, given the common rationales for the integration of the technology into legal process, and the multinational nature of the vendors of videoconferencing technologies. The issues I examine may have considerable relevance for the assessment of videoconferencing used in other areas particularly juvenile justice (Forell et al. 2011; Juvenile Justice (NSW) 2015–2016), mental health tribunals and telemental health (Cain et al. 2011; Myers and Turvey 2012; Mental Health Review Tribunal 2016–2017), proceedings for asylum seekers (Cardiff University Law School 2016); interpreters/translators (Napier 2011; Braun and Taylor 2011; Fowler 2013a, 2013b); and other adjudications such as landlord and tenants (Sossin and Yetnikoff 2007).

Identifying core themes

Spatially, the site of criminal justice is transforming to a network of disparate locations as investment in Information and Communication Technologies (ICT) replaces the bricks and mortar of courthouses (Licoppe and Dumoulin 2010; Mulcahy 2011; Rowden 2011; Mohr 2011; Robson and Liu 2014). But the technologisation of criminal justice is not just about changes to courtrooms. Videoconferencing is becoming integrated into prison infrastructure and custodial appearance is becoming the new norm, so the unique qualitative attributes of the prison environment must be investigated. Throughout the book and in Chapter 4 specifically, I therefore draw on a considerable body of prison research to reveal the fabric of carceral space that frames prisoners’ experiences of video link (Foucault 1977: 298; Wacquant 2002; Hancock and Jewkes 2011; Guenther 2011; Naylor 2014; Earle 2014; Grant and Jewkes 2015; Crewe 2009, 2015).

From a corporeal perspective, the body of the prisoner is increasingly excluded from the human world of the courtroom. This has led to a quantum shift away from the significance of the accused’s physical presence as a ‘master symbol’ (Hyde 1997: 8) that legitimates criminal procedure (Leader 2008). As technologies intrude into criminal process, Davis (2001: 26) asks: ‘does the defendant need to be there [in court]?’. Is virtual appearance from prison just the same as physical appearance? This technological disruption to established legal practice challenges the traditional privileging of physical presence in criminal procedure and punishment (Foucault 1977; Langbein 2003; Dennis 2007; Leader 2008). As video links are replacing face-to-face encounters between prisoners, their lawyers and remote courtrooms (Senécal and Benyekhlef 2009; Licoppe and Dumoulin 2010; Forell et al. 2011; Rowden 2013), this necessitates an articulation of the value of ‘liveness’ (Leader 2008; Auslander 2008) and natural, gestural human communication (Merleau-Ponty 1962; Mehrabian 1972; Poulin 2003; Heath 2004; Walsh and Walsh 2007; Csordas 2008; Turkle 2015). In Chapter 5 I examine how video link transforms prisoners’ embodied interactions with the outside world from face-to-face to ‘face-to-interface’ (Richardson 2010 (no page)). I also discuss our increasing bodily engagement with technologies (Haraway 1990; Ihde 1990; Hayles 1999, 2006) in the context of future directions.

Through the lens of visuality, I examine video link within the context of a growing body of literature that critically engages with visual criminology: the power of the image, visual production and representation (Young 2010; Hayward and Presdee 2010; Sherwin 2011; Carrabine 2012; Brown 2014; Rafter 2014; Davis 2015). The justice system is increasingly about pictures of screens requiring legal participants to develop visual literacy (Feigenson and Spiesel 2009). I build on this body of visual criminological literature to facilitate an understanding of video link as a visual medium and its impact of court appearance. With this background, videoconferencing is examined as part of an historical continuum of technologies that have constructed typologies of deviance. Optical technologies, such as cameras, have been critical in law enforcement and integral to the visibility and visual representation of the criminal body (Sekula 1986; Tagg 1988; Melossi 2000; Biber 2006a; Finn 2009; Carrabine 2012, 2014). Digital technologies generate a new visual regime in criminal justice and new forms of visual communication (Feigenson and Dunn 2003; Sherwin et al. 2006; Goodrich 2009; Carrabine 2012; McDonald et al. 2015), and prisoners’ experiences of custodial appearance are analysed in this context.

There is, by necessity, some conceptual and empirical overlap between my three core themes. Yet these themes allow me to analyse the material from different angles or dimensions and thus, together, bring greater depth to the analysis. The cumulative spatial, corporeal and visual impacts of video link are drawn together in examining notions of procedural justice in Chapter 7.

Book structure

In this chapter, I first introduce the broad international context of technological developments in criminal justice and the various forms of technologies, such as the UK virtual court and prison video link systems, their background legislative and policy rationales, the emergence of what I refer to as the justice matrix, ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright page
• Table of Contents
• List of figures
• List of tables
• Acknowledgements
• The Pixelated Prisoner: prologue
• 1 The justice matrix: technologising criminal justice
• 2 Theoretical framework: video links as prison technologies
• 3 Researching video links in prison
• 4 Video links: a spatial demarcation
• 5 Video links: a corporeal demarcation
• 6 Video links: a visual demarcation
• 7 Technologies and procedural justice
• 8 Epilogue: recommendations
• References
• Index