PRISON ABOLITION: FROM NAIVE IDEALISM TO TECHNOLOGICAL PRAGMATISM.

• Author: Bagaric, Mirko

INTRODUCTION 353 I. MASS INCARCARATION - THE NUMBERS 356 II. THE MASS DISADVANTAGES OF MASS INCARCERATION 358 III. MOVES TO LOWER INCARCERATION NUMBERS AND ABOLITIONISM 364 A. Mood for Change 364 B. Calls for the Abolition of Prisons 367 1. Prison Abolition: An Overview 368 a. Objectives of Abolitionism 370 b. Pillars of Abolitionism 371 c. Other Parts of Abolitionism 372 d. Campaigns for Prison Abolition 372 2. Abolition Defined; History and Prominence of the Concept Today 373 3. Arguments in Favor of Abolition 378 a. Political Arguments 378 b. Pragmatic Arguments 381 c. Ethical Arguments 388 4. Problems with Abolitionism 394 IV. TECHNOLOGICAL IMPRISONMENT INSTEAD OF CONCRETE WALLS 396 A. Framework for Establishing Alternative to Prison 396 B. Electronic Monitoring, Computer Surveillance of Movements, and Remote Immobilization 398 CONCLUSION 405 INTRODUCTION

It is difficult to conceive a society without prisons. They are a principal way that we have dealt with serious offenders since the eighteenth century. (1) Moreover, throughout this time, the design and appearance of prisons has barely changed. Progress and development in science and technology have impacted prisons less than any other part of the community. Yet, there is now a growing call to not only reduce the extent to which we sentence people to prison, but even to abolish prisons entirely. This is against the backdrop of increasing recognition that the mass incarceration policy pursued by lawmakers during the past fifty years has failed. Imprisoning more than two million Americans imposes a prohibitive financial burden on the community, ruins families, and leads to increased recidivism levels. (2)

The proposal to abolish prisons is not novel. However, until recently, it has featured only as an abstract concept in academic literature and has never received legitimacy as a serious reform proposal in the wider community. This is changing: Representative Alexandria Ocasio-Cortez has called for prisons to be abolished; the topic has featured widely in the mainstream media; (3) a recent edition of the Harvard Law Review focused on prison abolition; and there are now a number of social groups advocating for the proposal. (4)

The momentum to abolish prisons has increased even more recently in light of two unrelated but society-changing phenomena. The COVID-19 pandemic has had a devastating impact on all aspects of American society. (5) This includes the prison population. Prisons' structure has made them fertile grounds for the virus to spread, and this has resulted in large numbers of incarcerated people being released from prison. (6) At the same time, it has highlighted inadequacies in the design and workings of prisons leading to increased calls to rethink our approach to them. (7) In the midst of the pandemic, the brutal killing of George Floyd, a Black man, by white police officer Derek Chauvin in Minneapolis on May 25, 2020 (8) highlighted the racism experienced by many African Americans in the criminal legal system and brought the Black Lives Matter movement to national prominence. (9) Although the main focus of the demonstrations sparked by George Floyd's killing was ending police violence against African Americans, broader transformation of the criminal legal system is also a focus of the Black Lives Matter movement (10) because "many collateral consequences of mass incarceration have... fallen much more heavily on the necks of African Americans than on those of whites." (11)

Despite the emerging popularity of the prison abolition movement, it will almost certainly be rejected as an idealistically naive proposal. Prisons are a cornerstone of our society, and while there are numerous, serious disadvantages associated with incarcerating offenders, which are exacerbated by mass prison numbers, the reality is that prisons do serve an invaluable function. They protect the community from offenders committing further crimes while they are incarcerated. Other benefits of prison supposedly include general deterrence--the view that harsh penalties discourage potential offenders from committing crime (12)--and specific deterrence--the theory that individual offenders will be dissuaded from reoffending if the sanction they receive is unpleasant. (13) There is considerable empirical evidence that shows that harsh prison sentences do not achieve general and specific deterrence; (14) however, even if both were unattainable, it is incontestable that prison removes offenders from the community and therefore necessarily prevents them from causing harm to individuals or the community generally.

Thus, the ongoing unequivocal need to protect society from criminals provides a compelling basis for rejecting the abolitionist movement. In short, prisons will remain unless and until there is a viable alternative available. An irreducible requirement of an alternative to prison is that it provides an effective means of safeguarding the community from offenders committing further harm. In addition, it would be desirable for any alternative sanction to be more cost effective than prison and cause fewer incidental harms and suffering to the offender and his or her family. This Article proposes an alternative that satisfies these criteria. In doing so, it seeks to change the likely trajectory of the prison abolition movement from an idealistic suggestion to a realistic, achievable reform. To be clear, our argument is not strictly abolitionist; rather it is reformist. We believe the total elimination of the causes that lead to the need for prisons are unachievable, however, our solution coheres with an aspect of the abolitionist objective because it will greatly reduce the amount of people that are imprisoned.

We advance a viable alternative to prison that involves the use and adaptation of existing monitoring and censoring technology, which will enable us to monitor and observe the actions of offenders in real-time and, where necessary, to halt potentially harmful acts of offenders before they hurt other people. (15) We also shore up the normative and empirical arguments in favor of prison abolition. Again, to be clear, we do not advocate for total prison abolition, but rather argue for a reduction of at least 90% in prison population. Thus, we advocate for the substantive, as opposed to total, abolition of prisons.

In Part I of the Article, we provide an overview of the extent and nature of the incarceration crisis in the United States. This is followed, in Part II, by an analysis of the problems associated with high levels of incarceration. This relates to not only relatively obvious problems, such as the public cost of incarcerating more than two million Americans, but also the less-evident costs of the suffering of incarcerated people and their families. In Part III, we discuss the current momentum towards prison abolition and the pitfalls associated with this philosophy. An alternative to prison that achieves all of the demonstrably beneficial aspects of incarceration but avoids the human rights and fiscal problems of incarceration is set out in Part IV. Finally, we summarize our reform proposal in the conclusion.

1. MASS INCARCARATION - THE NUMBERS

   In the United States, incarcerated people are held in two forms of detention: prisons and jails. Prisons are institutions run by states or the federal government, which hold offenders whose sentences are typically longer than one year and include public and private prisons, boot camps, and treatment centers. (16) Jails are confinement facilities, which are operated by a sheriff, police chief, or city or county administrator and generally hold offenders who are sentenced to a term of one year or less. (17)

   According to the most recent incarceration data, there are approximately 1,505,400 Americans in state and federal prisons and an additional 740,700 in local jails, for a total of 2,162,400 incarcerated people. (18) Total incarceration numbers in the United States peaked at 2,310,300 in 2008. (19) The current number of incarcerated people in the United States per 100,000 adults is 860, whereas the incarceration rate was approximately 1,000 per 100,000 adults in 2008 and 980 per 100,000 adults in 2009. (20) Thus, there has been a more than 10% reduction in prison numbers during this period. (21) By contrast, before 2008, imprisonment numbers increased nearly four-fold in four decades. (22)

   The reduction in incarceration rates does not apply evenly to incarcerated people from different social groups. For instance, this shift most affected African Americans, whose incarceration levels diminished by 31% during the decade. (23) This may be attributable to some states moderating their previous emphasis on an offender's prior criminal history in determining the appropriate sanction. (24) Notwithstanding this change, African Americans are still incarcerated at a rate that is more than three times higher than that of the rest of the population. Although only 13% of American residents are African American, they constitute 40% of the incarcerated population. (25)

   Despite the decrease in imprisonment numbers in recent years, the rate of change remains slow. At the current pace of decarceration, it is estimated that it will take up to forty years to return to the rate of imprisonment in 1971. (26) Moreover, the United States remains the highest incarcerator in the world by a large margin. (27) It imprisons more people than any other nation (28) and at a rate that is, remarkably, ten times higher than that of some other developed nations. (29)

   Mass incarceration is a relatively new phenomenon in the United States. (30) As noted, prison numbers have grown massively during the past four decades, resulting in a quadrupling of the prison population. (31) This rise in prison numbers stemmed from increased penalties driven by an increasing crime rate during the "War on Drugs," which was declared by President Richard Nixon during...