Alm’s program certainly seems effective—much like BI’s technological solution to a similar set of problems. But as I stood in the security line at the courthouse where HOPE probationers report to urinate each morning, I couldn’t help but wonder how much the constant monitoring takes over their lives, and whether this carefully demarcated kind of freedom is more wearying than it appears. Some of the probationers had come in from an hour away to take their test, and they all had to monitor, on pain of incarceration, whether there was ever a whiff of spliff in the air at their friends’ places.
Back on the mainland, I asked law-enforcement officers and BI personnel, who have installed hundreds of monitoring anklets, how their clients first reacted when they felt the cinch of the band around their ankle and knew that, from that moment, they would be under constant surveillance. In most cases, Jennifer White told me, “they are just relieved to be at home and with their families and working.” Some were even grateful, because the device gave them an excuse to avoid criminal friends: after all, no one wants to commit a crime with an accomplice who’s being monitored. But not all were so upbeat. Some cursed. Others wept.
If the future of prisons is to be turned inside out, with criminals in the wild and their guards in a suburban midwestern office, how will the experience of being a convict change? The psychology of incarceration is well known not only to researchers, but to readers of Dostoyevsky and viewers of Oz. But to have your every step monitored as you make your way through life, ostensibly free—well, that is, so to speak, a brave new world.
In Anthony Burgess’s novel A Clockwork Orange, a dystopian British prison-state famously brainwashes a sociopathic youth into feeling physically ill at the very thought of inflicting pain. But he ultimately crumbles at the violence around him, and the state is forced to un-brainwash him. BI is of course installing its devices on the ankle, not in the mind. But 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. And to be constantly on watch may wear at the psyche in ways difficult to predict. In a boast that could also serve as a warning, Bentham himself described his Panopticon as offering “a new mode of obtaining power of mind over mind, in a quantity hitherto without example.”
In February, I visited Trenton, New Jersey, to observe a BI client in his native environment and to find out how life is for a man in a prison without bars. The New Jersey State Parole Board monitors about 250 sex offenders via GPS, and has had great success, in terms of cost and results, as a BI customer. The board’s public-information officer, Neal Buccino, offered to introduce me to a local child-molester, who allowed me to attend his regular parole meeting on the condition that I not use his real name. I will call him Mick.
Mick was 57, with a bad back, rotten teeth, and hepatitis. He’d worn a BI tracker for two years. When he walked in from the icy streets of Trenton, my eyes darted to the electronic components hanging off his leg and clothing, and I sympathized with him immediately. Mick had tried to kill himself a few months earlier in a bout of depression, possibly brought on by poverty and estrangement from his son and daughter, both of whom he had been convicted of molesting. He was tall and lanky, with glasses and a moustache, and, in the way of some depressives, was disarmingly funny. If I’d met Mick in the hallway of my apartment building, I would have thought he was there to fix the heater.
His parole officer, an intelligent young guy named John Goldin, meets Mick weekly to confirm where he has been, and why. He started by checking off the signs that Mick had kept away from kids and continued living his desperate and carefully observed life. “Any contact with police?” Goldin asked. “Drugs? Alcohol? Minors?”
Mick gave four quick, weary Nos.
Did Mick still plan to go fishing to supplement the $480 he had left over from his monthly disability payment after he paid child support? Were bedbugs still feasting on him and the other residents of his rooming house? Why had he gone to Broad Street on Wednesday?
Mick answered the questions with the resignation of someone who had become used to explaining every minute of his life to a man barely half his age. Yes, he was going to start fishing again. The bedbugs were gone for now. He’d gone to Broad Street to visit the TD Bank and count the loose change he’d found on the street.
As for the anklet itself, he told me his diabetes made him worry about where the band rubbed his skin. “I can’t afford no infections,” he said. In the summer, when the weather was hot and he didn’t wear long pants to conceal his tracker, he said the stares were constant: “I get tired of people asking me every day, ‘That a phone?’ I mean, shut the fuck up.”
Mick said he had trouble visiting his mother in her retirement home, because she worried about explaining why her son always wore a device on his leg. “She gets upset, and I can’t say that I blame her,” he said dejectedly. “It feels like it has grown into my skin sometimes.” It seemed also to have grown into his brain.
Whatever its merits, the idea of increasing the number of free-range felons such as Mick is unlikely to make for good politics. Willie Horton still haunts the dreams of every aspiring politician. Even Steven Alm says it was largely his reputation as a former prosecutor and “hanging judge” that enabled him to institute HOPE, since no one could plausibly accuse him of being soft on crime. “I’m convinced this is one of those Nixon-in-China things,” he explained. “If I hadn’t been a career prosecutor, there’s no way the law-enforcement people would have gotten on board.”
Nevertheless, there are moves under way to experiment with HOPE-like programs outside Hawaii. In addition to the conversations Alm has held with Attorney General Holder, legislation introduced by Representatives Adam B. Schiff (a California Democrat) and Ted Poe (a Texas Republican) would establish a competitive grant program to provide seed money for HOPE-style probation systems. Small programs are in place in Nevada and Oregon, and Alaska launched its own effort this summer. And the market for monitoring devices seems destined to expand, as the technology involved becomes more widespread and hardware costs continue to fall. Already, I have an application on my iPhone that broadcasts my exact location to selected friends at all times. If I were ever convicted of a crime and forced to submit to GPS tracking, I would, in theory, need only to add my probation officer to my Google Friends list and keep my phone handy. (When I showed the app to BI’s Jennifer White, she had trouble fathoming that anyone would use such a thing without a court order. “Do you keep that on all the time?” she asked suspiciously.) And with prison costs rising, and the pernicious effects of incarceration becoming clearer all the time, the problem of selling prisons without walls will presumably grow easier over time.
There are also, of course, worries about the creeping power of government, and the routinization of surveillance. Right now, BI monitors mostly offenders who have done something seriously wrong, and although its anklets enable parole and probation officers to lay down very specific location itineraries, in practice most just mark off home and work spaces. But there is no reason, as the technology gets cheaper and the monitoring ever more fine-grained, why electronic monitoring could not be used to impose an ever wider range of requirements on an ever wider range of “criminals.” A serious felon might have every second of his day tracked, whereas a lighter offender like myself—recently caught lead-footed by a traffic camera—might be required to carry a tracker that issues an alert any time I move faster than 65 miles per hour. (If such an intervention sounds far-fetched, recall that many jurisdictions in the United States already require convicted drunk drivers to pass an ignition-mounted Breathalyzer test before they can start their cars.)
The technology is already largely in place for such forms of Big Brother surveillance. In theory, they’d require little more than a creative judge to impose them, and someone behind a monitor in an office somewhere to enforce them. And that’s before you even begin spinning out the science-fiction scenarios, which themselves might not be so very far off. Right now the electrostatic patches made by BI and others monitor the sweat of parolees only for alcohol. But why stop there? Despite some practical hurdles, they could perhaps be upgraded to taste other substances, such as amphetamines or other drugs. And if patches can ensure that certain foreign substances remain out of the bloodstream, why not ensure that others are added to it—pharmaceuticals, say, to inhibit libido or muzzle aggression or keep psychosis at bay. They could even, again in theory, police the natural substances in our sweat, our hormones and neurotransmitters, the juices that determine our moods and desires. No machine currently exists that could sniff out criminal intent, or schizophrenia, or sexual arousal, from the armpits of a parolee or probationer, but the forward march of technology suggests that such a device is far from impossible, and that perhaps someday routine monitoring by authorities could be used to map convicts not just geographically but emotionally as well. If, for instance, the parole officer for a convicted rapist saw that his charge was in a state of highly elevated aggression, fear, and arousal, he might ask the police to pay an immediate visit to deter a possible crime—or, perhaps, interrupt a consensual encounter.
Future generations of devices could also be programmed to interact more directly with a client’s immediate surroundings. They might, for instance, react to the radio-frequency chips embedded in commercial products for the next generation of retail checkout scanners, and sound a warning if a parolee approached cigarettes like those he once shoplifted, or the liquor he liked to abuse. Or anklets could be set up to react with one another, preventing ex-cons from getting together without sounding an alert. Monitors could even be sold to store owners or other private citizens to let them know when particular categories of criminals set foot on their property.
These are the kinds of possibilities that give privacy advocates nightmares. Erik Luna, a law professor at Washington and Lee University, is a critic of mandatory sentencing and other measures that have packed U.S. jails, but he urges caution when viewing electronic monitoring as an alternative. “There should be a general concern about the extent of the power of the state to follow and track individuals and gather information about their lives,” Luna says. “What is the minimum ambit of privacy, to maintain the level of human dignity that a liberal form of government should provide?”
At the same time, if the people being monitored are those who would otherwise be in prison, then the infringement on their privacy is substantially less intrusive than that entailed in being required to sit in a cell all day. BI’s White made exactly this point when I raised the question with her. “They are doing their time in lieu of incarceration,” she said, with some exasperation. When I asked whether the privacy concerns of inmates should be considered at all, her answer, in essence, was no: “A person’s rights, when they are incarcerated, or a ward of the state, are different from yours and mine.”
And what of our rights, those of us outside the realm of the criminal-justice system? If the past several years in the shadow of a war against terrorism have taught us anything, it is that, once available, surveillance technologies rarely go unused, or un-abused. Could yesterday’s warrantless wiretapping become tomorrow’s clandestine cell-phone tracking? The technology already exists: even a cell phone that lacks a GPS can be traced to within a few city blocks. Once the legal and technical infrastructures were in place to allow the monitoring of criminals, it would be a relatively simple step to extend that monitoring to any person the government considered, for whatever reason, to be “of interest.”
For now, of course, none of these scenarios is close to taking place. Even HOPE, a narrow, low-tech program, is limited to Hawaii, and the number of convicts wearing BI’s anklets still make up a tiny fraction of those serving time, even outside prison walls. When close monitoring of probationers and parolees emerges as an ever more obvious alternative to expensive incarcerations, we would be wise to remain vigilant against Orwellian abuses. But potential drawbacks and pitfalls notwithstanding, it seems likely that the invasive surveillance model, combining tracking technology and the Kleiman/Alm paradigm of “swift and certain” justice, could offer an alternative to much of the waste—in human as well as economic terms—of our current, dysfunctional system.
In a way, the goal of Panopticon justice is as old as morality itself. It aims to install a tiny voice in each offender’s head, a warning that someone is watching and that wrongdoing will be punished. Most of us call that tiny voice a conscience. But for some that voice is overwhelmed by other, louder voices expressing need or impulse or desire, voices less bound by reason or consequence. If a device strapped to an ankle can help restore the balance, can amplify the voice of conscience relative to the others, is that such a bad thing? For optimists of human nature, it is a melancholy realization that the highest function of humanity can be, to some extent, outsourced to a plastic box. But the American criminal-justice system has become in many ways a graveyard of optimism. And surely it is better to outsource the fragile voice of conscience to a plastic box than to do what our brick-and-bar prisons so often do, which is to extinguish that voice altogether.