Law in the Internet Society

Technology and the Coming Criminal Corrections Paradigm Shift

In the face of strict budgetary constraints, the reemergence of fiscal conservatism as a viable electoral platform, and, in some cases, federal judicial intervention, state governments are scrambling to reduce prison populations. Politicians from both parties have pushed aside the fear-based politics of the post-Reagan era for a discourse that is more amenable to present conditions. Most saliently, they have recast the "prison industrial complex" that emerged to support 40 years of accelerating incarceration rates as an emblem of stagnation and government waste. The solution, it follows, is innovation.

This ethos is laid out succinctly by the White House: "Federal, state, and local leaders are looking for innovative ways to improve public health and public safety outcomes, while reducing the costs of criminal justice and corrections . . . [I]nnovative strategies can save public funds and improve public health by keeping low-risk, non-violent, drug-involved offenders out of prison or jail, while still holding them accountable and ensuring the safety of our communities."

One should not confuse this shift in discourse for anything but an optimistic gloss on the Reagan era paradegm of social disorder management. The Presidents statement, taken from a document aptly titled "ALTERNATIVES TO INCARCERATION," takes for granted the same principles that justified mass incapacitative incarceration: that a class of violent, anti-social or otherwise deviant individuals who are unwilling or unable to participate legally in society persistently undermine social balance and order and the fact that imposing restrictive social control over these individuals through the criminal justice system is the only constitutionally viable means of mitigating these social costs. What has motivated the shift in rhetoric is the belief that this latter of these propositions no longer holds true. It is based in the recognition that modern network and information technologies have the potential to dramatically expand the number of offenders amenable to "Community Corrections." (For my purposes, community corrections refers to any mechanism of deinstitutionalized social control operated under the auspices of the criminal justice system.)

Network technologies, particularly those of the mobile variety, promise to dramatically increase the system-wide efficiency of penal administration by enhancing a government's ability to exercise control in non-institutional settings at relatively little cost. Private sector competition to create novel control mechanisms will provide governments with a diverse set of tools for enforcing prisoners' terms of release. Moreover, with the aid of actuarial risk assessment tools informed by "big data", governments will be able to identify the risks associated with various control arrangements at the level of the individual offender. WIth this information, it will be able to select the most cost effective control mechanism for each offender subject to the risk threshold of its choosing. As the markets for these types of technologies expand and mature, governments will approach absolute incapacitative efficiency, in which each offenders risk adjusted administrative cost is minimized.

These technologies have the potential to bring about a criminal justice system that is, in some ways, more just and less socially destructive than the "prison industrial complex" of today. New computer learning and monitoring techniques, coupled with the vast data that will become available about both aggregated populations and individuals, promise to undercut the main criticism raised by opponents of actuarial or prediction driven corrections (that actuarial methods, by their very nature, radically deindividualize criminal punishment.) That is, access to a wider array of correction tools and accurate predictions about the likely impact of such tools on each individual offender will render the classification system (and other unexacting carceral population organization tools) unnecessary. In one sense, a government engaging in "efficient" criminal control would be undertaking a highly individualized approach. Indeed, due largely to the fact that the market for risk assessment tools would be driven by innovators seeking new applications for data collected in other realms, the determination of outcomes in this system would be tailored to a degree not imagined by earlier proponents of individualization.

Likewise, the adoption of prediction tools that take account of a much wider array of characteristics, and do so in ways that are themselves rationally and mechanically derived, could alleviate the concern that statistical tools rationalize the biases of those who create them. Finally, "always-on" mobile data collection and transmission tools would eliminate concerns about the failure of risk assessment tools to take account of dynamic indicators. Control systems of the future would process new data and adjust accordingly.

Despite these ameliorative effects (and, to some extent, because of them), the corrective technologies of the future will serve to perpetuate a system that is fundamentally unjust. Because these tools promise to lower the per capita cost of criminal control, they will promote the criminalization of ever larger spheres of behavior, changing the relationship between the government and an ever larger number of citizens. That is, more citizens will be subject to governmental action guided that is driven by the dictates of control and unrestrained by the dictates of the Constitution.

-- PatrickOConnor - 25 Apr 2013



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r2 - 23 Aug 2014 - 19:33:51 - EbenMoglen
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