Electronically Monitored Punishment

International and Critical Perspectives

Mike Nellis, Kristel Beyens, Dan Kaminski, Mike Nellis, Kristel Beyens, Dan Kaminski

• Publisher: Willan
• Year: 2013
• eBook ISBN: 9781136242779
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Electronic monitoring (EM) is a way of supervising offenders in the community whilst they are on bail, serving a community sentence or after release from prison. Various technologies can be used, including voice verification, GPS satellite tracking and – most commonly - the use of radio frequency to monitor house arrest. It originated in the USA in the 1980s and has spread to over 30 countries since then. This book explores the development of EM in a number of countries to give some indication of the diverse ways it has been utilized and of the complex politics which surrounds its use.

A techno-utopian impulse underpins the origins of EM and has remained latent in its subsequent development elsewhere in the world, despite recognition that is it less capable of effecting penal transformations than its champions have hoped. This book devotes substantive chapters to the issues of privatisation, evaluation, offender perspectives and ethics. Whilst normatively more committed to the Swedish model, the book acknowledges that this may not represent the future of EM, whose untrammelled, commercially-driven development could have very alarming consequences for criminal justice.

Both utopian and dystopian hopes have been invested in EM, but research on its impact is ambivalent and fragmented, and EM remains undertheorised, empirically and ethically. This book seeks to redress this by providing academics, policy audiences and practitioners with the intellectual resources to understand and address the challenges which EM poses.

Part I
National experiences

1
The limits of techno-utopianism

Electronic monitoring in the United States of America

J. Robert Lilly and Mike Nellis

Introduction

It is well known that electronic monitoring (EM) originated in the United States, but a definitive account of its emergence and developmental trajectory there has yet to be written, and there is no clear consensus as to what the theoretical and empirical parameters of such a narrative would be. There is a vast US literature on EM, either policy-based (published by or on behalf of the National Institute for Justice) or practice-based (published predominantly in Federal Probation and the Journal of Offender Monitoring). Such evaluative literature as there is leaves a lot to be desired, methodologically and substantively (see Renzema, this volume) and few academic commentators believe that EM’s growth has been informed by significant evidence of its effectiveness. Only a rather small amount of critical literature has sought to understand the social and political context in which EM appeared, and even someone as attuned to the nuances of penal innovation as David Garland (2000) pays it little heed. Ball et al. (1988) did the foundation work on EM’s criminological significance in the United States, but even they played down the technological changes which made EM possible, concentrating more on the way it had revived the ‘ancient’ penalty of house arrest. No single work has yet synthesized and expanded on this early critical literature, or embedded it in an adequate and up-to-date understanding of socio-technical developments. Corbett and Marx’s (1992) much-cited article on ‘emerging technofallacies in the electronic monitoring movement’ signposted the way, but even Marx’s (2007) own recent observations on ‘the engineering of social control’ have little specific to say on EM.

Corbett and Marx set the development of EM in the 1980s in the context of what Marx (1988) had already called ‘the new surveillance’ – in essence, technologically augmented forms of policing, the growth of drug testing and computerized databases – but this post-dated the era in which the proto-forms of EM actually originated (see also Le Mond and Fry 1975; Albanese 1984). Their ‘ten technofallacies of electronic salvation’ are important but they tend to give them each equal weighting, not to see that some are more central (and more fallacious) than others in explaining the seductive appeal of EM, and not to see the bigger cultural picture of which they are a part. In an effort to develop a more cultural understanding of EM, we will argue that the discourse of those who have championed it has been infused with ‘technological utopianism’, a term used by historian Howard Segal (2005) to denote a distinctively US outlook on social progress, in which technology is considered indispensable to the creation of a convivial life and to the solution of pressing social and political problems. Although it has periodically been condensed into specific programmes for the advancement of ‘technocracy’, the mentality has deep roots in the creation of America itself, in the conviction of early settlers that technological ingenuity and prowess would be essential to turn a wilderness into a civilized nation. In the twentieth century that conviction grew to encompass the taming/transforming of human nature itself – the ability to modify man himself through education or conditioning – and became pervasive (Brooks 2005). A certain ‘future mindedness’ – an expectation of perpetual improvement in the American condition – is manifested in concentrated visible form in US science fiction and futurology, but to a greater or lesser degree it is also layered into everyday consciousness, and supported (not countered) by another pervasive American tradition, that of pragmatism, which supplies the ‘can-do’ attitude. This is not to deny that in a pluralistic society ‘techno-utopian’ projects are often contested, that they fare better in some cultural and institutional contexts than others, that the self-same visions are easily (and often rightly) re-cast by opponents as dystopias, and that some visions have either made little headway or been stillborn – but, nonetheless, the allure of technological innovation has tended to inspire and energize initiatives in the United States which may never even have been experimented with elsewhere, at least until processes of ‘policy transfer’ carried them farther afield (Nellis 2000; Jones and Newburn 2007).

Explicit reference to ‘technological utopianism’ has been rare in accounts of penal change, although the reformative hopes invested in penitentiary architecture in the eighteenth and nineteenth centuries – note Bentham’s (1787 [1995]) apt reference to ‘a machine for grinding rogues honest’ – and the more recent accounts of the development of the electric chair give inchoate expression to it (Moran 2002). Understanding the emergence of ‘techno-corrections’ in the late modern world, including EM, requires greater recognition of utopian impulses. The now somewhat distant era in which the prototypes of EM first rose and fell was infused by vigorous and confident public debate about the potential of science and technology to transform American society (Harrington 1965; Toffler 1970; Crowe 1972; Corn and Horrigan 1984), the space programme being its most public manifestation. In essence, we will argue, the forerunners of what came to be called EM were born in a moment when techno-utopian tropes were particularly powerful, and gained initial credence because of them.

The origins of EM for offenders

The origins of what we call ‘electronic monitoring’ are nowadays routinely mentioned in the literature, but in a strangely truncated way. Harvard behavioural psychologist Ralph K. Schwitzgebel (aided by his brother, Robert) tested portable but unwieldy (and short-range) tracking devices (which permitted bi-directional communication) on students, psychiatric patents and offenders in Cambridge and Boston between 1964 and 1970. The devices contained equipment adapted from a guided missile system which enabled ‘the experimenter unobtrusively to record the location of the [delinquent]’ and ascertain where he ‘spends his time’ (Schwitzgebel 1963:13). The technology was patented and the results published in authoritative legal and scientific journals (Schwitzgebel et al. 1964; Schwitzgebel 1964, 1966, 1968, 1969, 1970, 1971; Schwitzgebel and Bird 1970; Schwitzgebel and Schwitzgebel 1973). What is less often remarked upon is the milieu in which this work took place, and the fact that there were other researchers involved in the same area of work, whose ideas have largely been written out of the narrative by critics and champions alike. The 1960s research milieu in which the Schwitzgebels operated was dominated by the behavioural psychology of B.F. Skinner and a widespread sense among many academic social scientists that his elaboration of ‘operant conditioning’ could have a transformative impact in education and crime control, perhaps approximating the utopia that Skinner (1948) had envisioned in a novel before his career as a psychologist began. Skinner was a great inventor of gadgets to aid ‘operant conditioning’ and the Schwitzgebels described their area of work as ‘psycho-technology’, an intellectual niche which brought together behavioural psychologists and early pioneers of neuroscience, including Jose Delgado (1969), whose experiments with ‘electrical stimulation of the brain’ (ESB) sought to reduce men’s violent impulses. Both ‘psychotechnology’ and Delgado’s dream of a ‘psychocivilised society’ were strikingly techno-utopian projects, although had it been known at the time how much of it was funded by the US military it may have been seen in more sinister terms (Schrag 1978; Moran 1978).

Mathematician and computer scientist Joseph Meyer (1971) was not formally connected to the psychotechnology movement, but was attuned to the zeitgeist. Depressed by the scale of America’s crime problem, and by the apparent failings of all existing responses, Meyer proposed a ‘transponder surveillance system’ using a nation-wide network of computer-linked transceivers, high on the walls of buildings (inside and outside) in every neighbourhood in the land. These would pick up in real time a unique radio-frequency (RF) identifier signal from unremovable ‘transponders’ attached to the wrists of some 25 million convicted criminals (usually released from prison) in the United States. Curfew and territorial restrictions could be programmed into the system, tailored to individual offenders, and some transceivers would cause any nearby transponder to sound an alarm, warning the wearer to keep away and (probably) alert the authorities regarding them. Criminologists Ingraham and Smith (1972) did have connections with psychotechnology, and went further. They proposed the remote monitoring of both an offender’s location and physiology – heart, pulse and brainwaves – and a capacity (possibly automated) to remotely zap their brains (via implanted ‘stimoceivers’) if the signals received back at the monitoring centre ‘suggested’ they were contemplating or committing an offence. More so than Meyer’s, and in the context of a growing backlash against behaviourism, this proposal helped to create the sense that psychotechnology was finally going too far.

The Schwitzgebels had themselves once entertained the idea of subjecting substance-using offenders to ‘a small portable shock apparatus with electrodes attached to the wrist’ (Schwitzgebel, undated, quoted in Mitford 1974: 226) but still formally conceived of their work in rehabilitative terms. They hoped that by monitoring the movements of offenders and praising them for sticking to agreed zones and schedules they would be able to supply the ‘positive reinforcement’ that Skinnerians considered essential to – and superior to punishment in – effecting individual behavioural change. They wanted their particular technology to have a practical application but were less convinced that ESB could be taken out of the laboratory and applied in the real world.

Despite their different perspectives, Schwitzgebel, Meyer and Ingraham and Smith were all toying with forms of tracking – the monitoring of mobile subjects – rather than ways of restricting offenders to a single location. Augmenting house arrest was not what they had in mind. The possibility of being able to pinpoint an individual in a crowded city or a small town seemed at the time like a particularly spectacular and commanding application of science and technology, a significant advance in crime control. But none of the technologies were adopted by criminal justice agencies, or subject to further research and development, nor did they find commercial sponsors. What happened? Stephen Main-prize’s (1996) contention in respect of the Schwitzgebels’ technology is that their emphasis on it as a form of rehabilitation clashed with a shift in penal sensibility towards punishment and control, although the President’s Commission on Law Enforcement and the Administration of Justice (1967) had in fact given a considerable boost to ‘community corrections’. What brought the proto-forms of EM, and the edifice of ‘psychotechnology’ to a somewhat abrupt end was the burgeoning backlash against the illiberal implications of behaviourism (as expressed by Skinner (1971)), the ascendancy of the personalist and libertarian values of the counterculture and the exposure and critique of military funding of university research. The Schwitzgebels’ own work may have been relatively innocuous in comparison to some of what was going on, but their ideas were undoubtedly tainted by events. Most rehabilitation and community corrections professionals could not reconcile surveillance with humanistic social work practices, and were increasingly confident that probation and parole services could be improved, and imprisonment reduced, without recourse to technology (Morris 1974).

There was no governmental or professional attempt to revive interest in the work of the Schwitzgebels, Meyer or Ingraham and Smith, and EM as we came to know it arrived almost surreptitiously. In 1977, Judge Jack Love, a district judge in Albuquerque, became interested in ways of facilitating temporary release for young adult offenders from the local penitentiary. Love realized that public confidence required knowing where people were outside the prison. To this end, he randomly collected information on location monitoring: swipe-card systems used in supermarkets, animal and cargo tracking technologies and – famously – a copy of a Spiderman comic strip syndicated in a local newspaper, in which a villain fits a (potentially explosive) tracking device to Spiderman’s wrist, enabling him to offend with impunity because he could now stay one step ahead of the superhero. Love sought unsuccessfully to interest the New Mexico Department of Corrections in the idea of location monitoring released prisoners. He pursued the idea independently after a riot in the penitentiary in 1980 revealed how brutal conditions were. He asked a computer salesman, Michael Goss, if such a device were possible. Goss checked the Schwitzgebel patents and realized that with the smaller electronic components now available, something approximating it could be built – not, as yet, a tracking device, but a device which monitored a person’s proximity to a base station, relaying any violations via telephone to a control centre. Love liked the ‘Gosslink’, and in March 1983 used his discretion within his own local court to subject a probation violator to it – the first of five, before his judicial superiors forbade further use of it (Timko 1986; Renzema 1992; Love 2005).

Love deserves credit for originating the modern form of EM in the United States (and therefore the world): he stimulated the development of an operational version of it, and made the first practical use of it. Nonetheless, by the early 1980s, other states – and small commercial organizations – developed and implemented variants of the technology. Florida had established a state-wide ‘community control programme’ (using house arrest in a punitive manner, initially without EM) in early 1983; the West Palm Beach jurisdiction adopted EM shortly afterwards; and in December 1983 Judge Allison deFoor sentenced a repeat unlicensed driver to it (Renzema 1992). A small project in Kenton County, Kentucky became the first Department of Corrections-funded, probation-run...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Contents
• List of illustrations
• Notes on contributors
• Acknowledgements
• Introduction Making sense of electronic monitoring
• Part I National experiences
• Part II Debates
• Index