AuthorBagaric, Mirko

TABLE OF CONTENTS INTRODUCTION 75 I. THE INCARCERATION CRISIS 81 A. Present Incarceration Levels are Fiscally Exorbitant 81 B. Conventional Incarceration Violates Inmates' Human Rights 84 C. The Rate of Recidivism Amongst Former Prisoners is High 86 D. The Present Receptiveness to Changing the United States Sentencing System Radically 88 II. THE APPROPRIATE AIMS OF SENTENCING 92 III. THE KEYS TO TECHNOLOGICAL INCARCERATION: MONITORING OF LOCATIONS, SURVEILLANCE OF ACTIONS, AND IMMOBILIZATION 98 A. Electronic Monitoring of Offenders' Locations 98 B. Computer Surveillance of Offenders' Actions 102 C. Remote Immobilization of Offenders 107 IV. THE SUPERIORITY OF TECHNOLOGICAL INCARCERATION TO CONVENTIONAL PRISONS 110 A. Proportionate Punishment of Offenders 110 B. Community Protection 111 C. Potential to Apply Technological Incarceration to Most Offenders 115 D. The Cost of Technological Incarceration 119 E. Repurposing Conventional Prisons 122 V. REBUTTING ANTICIPATED OBJECTIONS TO TECHNOLOGICAL INCARCERATION 123 A. Technological Incarceration Violates Human Rights 124 B. Technological Incarceration is Too Lenient 127 VI. RECOMMENDED IMPLEMENTATION OF PROPOSED REFORMS 130 CONCLUSION 132 INTRODUCTION

Sentencing is the forum in which the community acts in its most coercive manner against its citizens. The United States inflicts more deliberate institutionalized punishment on its people than any other country on Earth, and by a large margin. (1) More than two million Americans are currently incarcerated in prisons and local jails. (2) This equates to an incarceration rate that is, remarkably, ten times higher than that of some other developed nations. (3)

The incarceration crisis that the United States is experiencing did not occur suddenly or unexpectedly. It is the result of a forty-year "tough on crime" campaign, which has resulted in a quadrupling of the prison population. (4) For some time, the fact that the United States became the world's largest incarcerator did not seem to trouble the general community. (5) The rise in prison numbers continued unabated without any unified or concerted effective public counter-movement. Recently, however, this tacit endorsement of the incarceration rate has begun to dwindle. (6) The prison over-population problem is now regularly the subject of mainstream media coverage and political discussion. (7)

Particularly in the past two years, there has been a growing awareness in the United States that mass incarceration is no longer tolerable, and public discussion has commenced regarding the need for change. The issue has shifted from academic curiosity and inquiry to mainstream prominence. In July 2015, Barack Obama became the first sitting United States President to visit a United States prison when he visited a medium-security prison in central Oklahoma. (8) Following the visit, the former President "... called for lowering--if not ending--mandatory minimum sentences for nonviolent [sic] drug offenses, restoring the voting rights of ex-felons, revisiting hiring practices that require applicants to list criminal activity, and expanding job training programs so inmates are better prepared to reintegrate into society." (9) President Obama also mentioned the need for sentencing reform in his 2015 State of the Union address. (10) Although public discussion about reducing incarceration numbers seems to have stalled following the election of Donald Trump, (11) the fall-off is probably attributable to preoccupation with the political changes that the new administration is likely to make and is making, rather than to some alteration of the perception that reform is needed. While there has been a slight reduction in the scale of incarceration recently, (12) the imperative to reduce prisoner numbers has not diminished.

The major reason for the current focus on the incarceration crisis has nothing to do with concern for the rights or interests of those most affected by sentencing policy or practice. Instead, it has everything to do with money. The fiscal burden of imprisoning nearly one adult person in every thousand weighs heavily on even the world's largest economy. The United States spends approximately $80 billion annually on corrections. (13) Even for the world's largest economy, this is a terrifying amount--especially when one considers that the total expenditure on the criminal justice system is $270 billion, some $870 for every woman, man, and child in the United States. (14) As President Obama recently noted, this rate of expenditure is unsustainable, (15) and recognition of this fact has prompted policy makers at least to start discussing the need to lower prison numbers and reform the sentencing system. (16) Nevertheless, no principled options for systematically reducing prison numbers are currently being implemented, and any options for change are unlikely to be pursued if they are simply motivated by a desire to reduce prison numbers. While pragmatically motivated reform might be implemented, it will probably produce expedient solutions that exacerbate the United States' sentencing crisis. A durable, economically and ethically sound solution is urgently required. (17)

This Article outlines such a solution: technological incarceration. We propose adapting and incorporating technological and remote surveillance capabilities for dealing with criminals. A startling aspect of criminal sanctions is that they have remained largely impervious to developments in science and technology. The principal method we employ to deal with serious criminals is almost identical to that of our distant ancestors: we confine them behind high stone or concrete walls. (18) As Neil Hutton notes, sentencing law is "neither formal nor rational. It is one part of a modern legal system which has remained substantive and irrational." (19) This Article aims to change this monumental societal oversight.

In the body of the Article, we show that the two appropriate aims of custodial sanctions--namely community protection and the infliction of proportionate punishment--can readily be achieved by creating new sanctions that substitute concrete walls with technological barriers and restrictions. Crucially, technological incarceration will still punish offenders and be as effective as conventional prisons in preventing offenders from committing crimes. Technological incarceration will be cheaper to administer than bricks-and-mortar imprisonment. Moreover, it will ameliorate the gratuitous, incidental forms of suffering and human rights deprivations that are regrettably inflicted on those incarcerated in conventional prisons. Prisoners housed behind concrete walls cannot procreate or engage in meaningful family relationships. (20) Their life expectancy is reduced. (21) They are far more likely to be beaten or raped than other members of the community, (22) and, hence, their right to sexual and physical security is diminished. Further, their ability to secure employment after release is reduced, as are their lifetime earnings. (23) The level of pain caused by imprisonment is not fully recognized in the sentencing calculus. As well as relieving offenders of these experiences, technological imprisonment will reduce recidivism to a far greater extent than conventional prisons through effectively facilitating offenders' rehabilitation and their integration into the community upon release from incarceration. (24)

Technological incarceration will have three key components that, like conventional prisons, restrict offenders' liberty, thereby punishing them and preventing them from reoffending while they are incarcerated. The first component requires prisoners to wear electronic ankle bracelets that monitor their locations and alert authorities if the prisoners breach the geographical areas to which they are confined.

The second component of technological incarceration involves remote monitoring of offenders' activity in real time. While it is possible to install surveillance cameras and employ people to monitor the footage from them constantly, this process would be prohibitively expensive. Instead, our proposal requires prisoners to wear a series of remote sensors--including those for sound, video, and movement--that are connected to central computer systems that can detect unauthorized behavior. Computer software exists that can detect suspicious human behavior, and it is so sophisticated that it can distinguish between a person using a butter knife to make a sandwich and picking up a steak knife in an aggressive manner. (25)

The third component of technological imprisonment involves using remote-controlled Conducted Energy Devices ("CEDs") to immobilize offenders who are in the process of committing serious criminal acts or moving outside the locations to which they have been confined. Currently, law enforcement officers widely use CEDs, in the form of stun guns or Tasers, to restrain offenders who are behaving in a violent or threatening manner by firing the electroshock weapons at them. Technology is, however, available that can enable a computer that is monitoring offenders' movements to deliver remotely the same shock as a conventional electroshock device and thereby immobilize offenders.

The second and third components of technological imprisonment seek to ensure that the community is protected from offenders' possible reoffending for the periods during which the offenders are incarcerated. Even if an offender's location is monitored, he or she could still commit offenses within this space or breach the prescribed geographical area and commit offenses in its immediate vicinity. The integration and refinement of two technological systems (components two and three), however, enable us to attain the objective of community protection without confining offenders behind concrete walls.

In this Article, we show that technological incarceration systems can be developed and employed to achieve all of the...

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