VIRTUAL SHACKLES: ELECTRONIC SURVEILLANCE AND THE ADULTIFICATION OF JUVENILE COURTS.

• Author: Arnett, Chaz

INTRODUCTION

1. SURVEILLANCE STUDIES AND ELECTRONIC MONITORING

   Surveillance as a field of study is relatively young. (2) However, the theoretical groundwork for the field extends further back in history.' The subject of surveillance as a tool of the criminal justice system for discipline and shaping behaviors and norms can be traced to the eighteenth century work of Jeremy Bentham. (4) Bentham believed that people could internalize discipline through being subjected to surveillance and the pressures of knowing that one is under constant watch. (5) He saw great use for this idea within the prison system and proposed a prison design, the Panopticon, that maximized the use of surveillance. (6) The Panopticon structure consisted of a central observation room around which the cells of the prison would be built in a circular pattern. (7) The design would, in theory, allow a single watchman to observe all the prisoners at every point. However, the inmates would not be able to ascertain when or where they were being surveilled, giving the impression of omnipresent surveillance. (8) Bentham believed that omnipresent surveillance would lend itself to perfect discipline amongst the prisoners, impacted by the perception of an all-seeing and omnipotent watchman. (9) Bentham imagined Panopticons as progressive tools that would provide solutions to many of the social and economic problems of his time. (10) Through temporary subjection to the power of surveillance, disciplinary reform of the troublesome segments of the population, those engaging in crime and unwilling to work, could be realized, leading to the greater good for all citizens while sparing inmates from more barbaric and violent measures typically associated with prison.

   Although Bentham's Panopticon prison design was never fully implemented, the idea influenced scholars who revisited the work in the late twentieth century, most notably Michael Foucault. (12) In expanding upon Bentham's Panopticon penitentiary idea, Foucault argued that similar surveillance measures were being used in different aspects of Western societies in ways more ubiquitous, and thus more powerful, than the Panopticon. (13) He analyzed institutions such as schools, hospitals, factories, and the military as utilizing panoptical mechanisms for surveillance. (14) Whereas Bentham argued for temporary surveillance with the Panopticon, with the hope that discipline and changed behaviors would one day eliminate the need for surveillance, Foucault noted that by the late twentieth century, there had been a shift in focus with the pervasive use of surveillance from discipline to control, from the goal of establishing discipline societies to maintaining control societies. (15) For example, by the 1970s and early 1980s, surveillance was propelled and enhanced by what could be understood as an electronic Panopticon, with miniature microphones, wiretaps, hidden tracking devices, and discreet video cameras. In Bentham's Panopticon, inmates would know that they were being watched, but with the modern forms of surveillance, the subjects are not even aware they are being observed. With these more modern modes of surveillance, information and data can be gathered and used to perpetually regulate large swaths of people. No longer is the aim of surveillance, as Bentham imagined in governance and regulation, the building of self-discipline within individuals, but rather the controlling of populations. Foucault argued that this critical shift, from targeted, temporal surveillance to ubiquitous, enduring surveillance, occurred because of these developing surveillance technologies and their accompanying greater reach and power. (16) He warned that this de-individualization in control societies could ultimately evolve into dehumanization, as individuals are not targeted directly as human subjects, but rather through representations. (17)

   More recently, surveillance studies have discussed the impact of developments in technologies. (18) Scholars have documented the proliferation of advanced devices and have proposed theories, argued grounds upon which over-surveillance may be opposed, and developed measures and frameworks for potentially containing device use. (19) They suggest that the ubiquity of such technologies today makes ours a "surveillance society," one that poses a number of privacy concerns for citizens. (20) Contemporary surveillance scholars also largely argue that the classical panoptic metaphor has minimal utility when attempting to capture new electronic surveillance technologies and stress the need for newer scholarly tools of analysis. (21) For example, surveillance and social control scholar Gilles Deleuze noted that the power dynamics between institutions and individuals are no longer as defined as they were in Bentham's or even Foucault's analysis. (22) Deleuze concluded that institutions, such as schools, factories, hospitals, prisons, and the military, and their ways of disciplining, no longer existed, or at least were shifting into newer forms of surveillance and exercising power. (23) Deleuze argues that the new sources of power are incredibly different and impact the socio-technical landscape in ways that classical theorists could not have imagined. (24) He rejects the idea of discipline as the aim of governing. (25) He identifies corporations as the new driving forces of power and control in the capitalistic structures, in which the family, the factory, the army, the hospital, and the prison are no longer distinct spaces, but coded figures, "deformable and transformable" to the whims of a single corporation that now only has stock holders. (26) Where discipline seeks to establish a long-term, stable, and docile society striving for the optimal use of resources to reach govemment-defined goals, corporations focus on short-term results. (27) To achieve this, corporations demand constant control, through continuous monitoring and assessment of markets, workforces, and strategies. (28) For Deleuze, the corporation is a fundamentally different being than the nation-state because it does not strive for progress of society as a whole, but rather attempts to control certain specific parts of markets. (29)

   The modern architects of surveillance studies diverge even further from panoptical thinking and have in many ways eroded the theoretical ground upon which the study of surveillance rests. (30) Currently, there is no foundational theory guiding this young field, leading to ideas and scholarship on surveillance that are often technology-dependent. The problem of surveillance theory here is that the rapid evolution of the power, breadth, and complexity of surveillance tools and practices seems to frustrate efforts to develop an over-arching theory of surveillance that captures it as a largely unitary concept or phenomenon. (31) It also has led to gaps in scholarship and disjointed coverage. Some modes and devices of electronic surveillance within surveillance studies have garnered less theoretical exploration, and subsequently reduced examination of the law and policy implications associated with their use. In particular, little attention has been paid to electronic monitoring of criminal offenders in surveillance studies. (32) There may be several reasons for this lack of attention. Only recently has electronic monitoring technology allowed for anything more than rudimentary surveillance, so there may not have been serious concerns about the harms that could arise. Also, electronic monitoring may not appear as pervasive in comparison to other modes of surveillance. An estimated 300,000 people experience electronic monitoring every year through the criminal justice system versus, for example, the tens of millions of people identified by whistleblower Edward Snowden as having their phone communications surveilled by the U.S. government. (33) Even more, the targets for surveillance are criminal offenders who already suffer lower social status and are presumed to have a diminished expectation of privacy. Additionally, electronic monitoring of criminal offenders may be seen as more suitable for discussion in the field of criminology versus the privacy sphere, which has dominated recent scholarship on the proliferation of surveillance technology. (34) This is particularly surprising, given surveillance's original connection to prison practices with Bentham's work.

   Criminologists dedicate some attention to electronic monitoring of offenders. (35) However, the scholarship tends to: 1) focus narrowly on evaluations of the effectiveness of the technology in curbing recidivism and promoting public safety, 2) exclude the opinions and experiences of those surveilled, and 3) support the use of the technology despite acknowledged "shortcomings." (36) There is a noticeably limited number of studies that critically interrogate the potential harms and punitive aspects of electronic monitoring or, as Focault warns, the risk of dehumanization. This hesitancy to critically examine this form of surveillance rests in large part on the tendency of scholars interested in prison reform to compare the release from jail on electronic monitoring to the prospects of confinement. (37)

   Criminologists, who have invested much effort over the years in analyzing and revealing how the most deplorable features of American prisons have severely damaging effects on inmates, have a vested interest in reform attempts, and anything short of detention is often seen as a normatively good proposition. (38) In this logic, it is the degree of harm associated with imprisonment that casts electronic surveillance, as an alternative to detention, as a moderate, if not more humane, penalty. (39)

   Indeed, it is reasonable to argue that being released from prison, even under surveillance, may be "better" than being locked away. (40) However, such comparisons leave little room for critical reflection into how electronic surveillance may...