It’s an eschatological dream: open the prisons. Let at least nonviolent offenders out and give them a chance to build an honest life in society. Free at last, right? Well, yeah—except for the odd beepers strapped onto their ankles and the boxes on their belts, which broadcast their position (and the chemical composition of their sweat) to an office park in Indiana. The contraptions even periodically issue verbal commands at their wearers. Step away from the liquor store.
Atlantic correspondent Graeme Wood, in his new article “Prison without Walls,” is sold. The United States has one of the world’s most brutal, inhumane, and disastrous incarceration industries, with currently around 2.3 million people locked up in prisons and jails—perhaps half of whom, if ever released, will be back again within three years. The answer? A growing (private) regime of total surveillance by electronic monitoring. Emerging technologies now allow contractors to track offenders better than ever, to the point now that, in many cases, walls, bars, and a jumpsuit are becoming obsolete. Wood imagines that
if we extended this form of enhanced, supervised release even to just the nonviolent offenders currently behind bars, we would empty half our prison beds in one swoop. Inevitably, some of those released would take the pruning-shears route. And some would offend again. But then, so too do those convicts released at the end of their brutal, hardening sentences under our current system. And even accepting a certain failure rate, by nearly any measure such “prisons without bars” would represent a giant step forward for justice, criminal rehabilitation, and society.
He has a point. American prisons are horrific and utterly counterproductive places, where inmates learn to live in fear of their guards and each other. Those who get out bring that logic with them into society outside. The fewer people we need to keep in prisons, without doubt, the better off we’ll all be. And the process that Wood describes, of course, is hardly radical, as already two-thirds of those being punished in this country are on probation or parole. But, like most dreams, it carries the ingredients of a nightmare.
What’s at work in electronic monitoring, Wood suggests, is the latest form of Jeremy Bentham’s concept of the Panopticon, a model of incarceration by constant observation:
the real purpose of any form of Panopticon justice—that is, the certainty of discovery and punishment—is to force the criminal to monitor himself. The Panopticon effectively outsources the role of prison guard to the prisoners themselves.
It is, for those who seem not to have developed enough of one alone, a kind of training-conscience. With violence more psychological than physical, all modern prisons are meant to infantilize, to destroy, and (when funds or often “faith-based” volunteers happen to be available) to rebuild the human beings entrusted to them.
Wood doesn’t mention the philosopher Michel Foucault, who in his classic Discipline and Punish became the most disturbing commentator on Panopticism. Foucault argued that, rather than forming consciences, the specter of an all-seeing eye transforms an offender into an out-and-out criminal. What I learn about myself by being so constantly monitored is that constantly—and for good—I am a wrongdoer. This is the training I receive: I will never be anything else. I belong to a permanent criminal class, a stratum for beings whose native condition is to be monitored. Without the presence of those watching, the evil that is natural to me will be unleashed. Foucault’s most important insight, though, is that this phenomenon is not limited only to the prison. The Panopticon is also an image of modern society in general.
Foucault’s claims are too penetrating to be dismissed as mere Frenchish theory; the appalling rate of recidivism in the US in no small way corroborates them. While there is much good to be said about the developments Wood’s article describes, its potential subtext is the formation of a permanent criminal underclass, one subject to years or a lifetime of fantastically close observation, subject to the whims of the officers (and, again, private contractors) charged with watching its members’ every move. Even solely in practical terms, it could turn into a disaster. This passage over at Prison Law Blog describes what has happened in California, a pioneer in keeping its offenders outside of prison:
Almost half of California’s prison population (60,000 to 70,000 out of about 160,000) are parole violators, who may be serving only a few months in prison before they revolve back out into the community. And California has another 120,000 or so parolees out in the state at any given time—1/5 of the nation’s total number of parolees. Note, too, that a “technical parole violator” could be anything from someone who failed a drug test or forgot to update his address, to someone who is accused of committing a rape or murder: California has long used the parole violation process in lieu of criminal prosecution in a surprising number of cases involving serious criminal allegations.
[…] the Golden State’s parole system has been widely viewed as a failure both at facilitating prisoner reentry and at protecting public safety.
Emphasis added—and, I think, rightly so. This permanent criminal underclass is one unprotected by the normal judicial system and subject to a parallel system of justice, a system out of the public eye and more prone to abuse. There is no due process. Parole officers, not juries, determine a person’s fate. Combined with other familiar elements of American criminal practice—excessive sentencing, racial profiling, overemphasis on nonviolent drug offenses, and the paucity of reform and reentry programs—a prison without walls could become our most dangerous prison yet. It could become a means to keep more people trapped in the justice system, and outside the protection of basic rights, for even longer portions of their lives.
Surveillance-punishment may be a step toward a more just, humane, and effective kind of justice, though it is hardly the silver bullet that Wood presents it as. Alone, it is the wrong kind of distraction. There’s no way of getting around the hard questions that American society seems intent on avoiding: why we punish people for the wrong crimes in the wrong ways, and how we can go about finally changing course.
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