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March 16, 2017

"Technological Incarceration and the End of the Prison Crisis"

The title of this post is the title of this notable new article now available via SSRN authored by Mirko Bagaric, Dan Hunter and Gabrielle Wolf.  Here is the abstract:

The United States imprisons more of its people than any nation on Earth, and by a considerable margin.  Criminals attract little empathy and have no political capital.  Consequently, it is not surprising that, over the past forty years, there have been no concerted or unified efforts to stem the rapid increase in incarceration levels in the United States. Nevertheless, there has recently been a growing realization that even the world’s biggest economy cannot readily sustain the $80 billion annual cost of imprisoning more than two million of its citizens.  No principled, wide-ranging solution has yet been advanced, however.  To resolve the crisis, this Article proposes a major revolution to the prison sector that would see technology, for the first time, pervasively incorporated into the punishment of criminals and result in the closure of nearly all prisons in the United States.

The alternative to prison that we propose involves the fusion of three technological systems.  First, offenders would be required to wear electronic ankle bracelets that monitor their location and ensure they do not move outside of the geographical areas to which they would be confined.  Second, prisoners would be compelled to wear sensors so that unlawful or suspicious activity could be monitored remotely and by computers.  Third, conducted energy devices would be used remotely to immobilize prisoners who attempt to escape their areas of confinement or commit other crimes.

The integrated systems described in this Article could lead to the closure of more than ninety-five percent of prisons in the United States.  We demonstrate that the technological and surveillance devices can achieve all of the appropriate objectives of imprisonment, including both the imposition of proportionate punishment and also community protection.

In our proposal, only offenders who have committed capital offenses or their equivalents, or who attempt to escape from technological custody would remain in conventional bricks-and-mortar prisons.  As a result, our proposal would convert prisons from a major societal industry to a curious societal anomaly.  If these reforms are implemented, the United States would spend a fraction of the amount currently expended on conventional prisons on a normatively superior mechanism for dealing with society’s criminals.

March 16, 2017 at 09:33 AM | Permalink


Oh the devil and the details. I can already see the claims that the conducted energy devices are either excessive force under the Fourth Amendment or cruel and unusual punishment under the Eighth.

If the legal challenges fail, the next question would be foolproofing the method -- assuring that the devices do provide an appropriate shock when the prisoners do exit the authorized area and do not mistakenly deliver such a shock to prisoners who are still within the authorized areas. If "work release" and routine shopping is authorized, I could see problems with what routes are authorized routes from home to workor the store. (Does a detour to avoid a traffic accident represent a departure from the authorized route and would you really want to deliver a sufficient immobilizing shock to someone operating a motor vehicle.)

If you get past both the legal and the technological issues, the question then becomes what offenses are "exempt" from this alternative. If the goal is incapacitation, you almost certainly have to exempt most drug cases. (Convicted dealers could still sell out of their homes; and convicted users could still buy at their homes.) Probably, domestic violence and child abuse (both physical and sexual) would have to be exempted as they are often committed in the defendant's home. Without doing a detailed numbers analysis, I would expect that this proposal would quickly be limited to property offenses with minimal impact on prison population and would be used mostly for people who currently get probation.

Posted by: tmm | Mar 16, 2017 11:09:53 AM

Such a proposal requires massive numbers of worthless, government make work rent seekers. Silly and worthless.

Posted by: David Behar | Mar 16, 2017 8:46:25 PM

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