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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

Thank you for posting this article for discussion. I am a private individual. I have personal interests in the research and use of technology in the creation of prison-like conditions within a natural, real world environment. As the article states, the United States does have a problem of massive incarceration. However, in my opinion and the opinion of many others, the issue is over incarceration. The elimination of physical prisons for a technologically induced state of incarceration runs the risk of increasing mass incarceration rates, not reducing them.

Regarding the suggested methods of remote immobilization of offenders, I know that publicly available information is not sufficient for fully informing the prison debate as to the advanced level of technology being researched for similar uses of moral/behavioral intervention. The suggested use of remotely controlled, conducted energy devices is a very watered down version of research being conducted into the ability to use various methodologies to remotely intervene in the human brain and nervous system as a method of moral bio-enhancement, behavioral control or "intervention".

Just like traditional "brick and mortar" prison conditions, the use of these technologies for methods of punishment and social control can easily devolve into a dystopian form of human subjugation without public transparency nor accountability. What? You've got a complaint on your remote jailer, or the judge, or the prosecutor....Zap, Zap, Zap, Zap...you get the picture.
Beyond that is the possibility of the use of the remote capability for behavior shaping by physical punishment in ways that suppress other freedoms. For example, there is no need to burn or ban books because if you don't want someone to read something, watch something, learn something, etc. then you can just disrupt the brain and nervous system remotely and prevent them from being able mentally or physically engage with the material.

Finding employment is already an issue for "ex offenders". Is keeping ex offenders unemployed intentional? Research into the use of this technology for intentional performance degradation capabilities suggests to me that it might be. By intervention in the brain and nervous system while they are working, this technology creates the ability to financially sanction an individual or intentionally subjugate them to a lower social class by controlling their employment through physical control over their level of productivity and thus professional achievement by intentionally disrupting the person's natural mental and physical capabilities.

We need to consider more than just the offender as the problem in prison issues. There are many other variables, including corruption and apathy within the criminal justice system, corrections personnel, and politics surrounding mass incarceration. These prison reform issues will not go away with technology. Technology is only as good as the users.

Posted by: Meagan Derringer | Apr 21, 2018 11:48:44 PM

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