From Decarceration to E-Carceration

81 Pages Posted: 14 May 2019 Last revised: 19 Feb 2020

See all articles by Chaz Arnett

Chaz Arnett

University of Pittsburgh - School of Law

Date Written: May 14, 2019

Abstract

Each year, millions of Americans experience criminal justice surveillance through electronic ankle monitors. These devices have fundamentally altered our understanding of incarceration, punishment, and the extent of the carceral state, as they are increasingly offered as moderate penal sanctions and viable solutions to the problem of mass incarceration. They purportedly enable decarceration, albeit with enhanced surveillance in the community as the compromise. Proponents of the devices tout the public safety and cost benefits while stressing the importance of depopulating prisons and returning individuals to their communities. In recent years, an oppositional movement has developed, focused on highlighting the social harms of electronic monitoring as part of a burgeoning e-carceration regime, where digital prisons arise, not as substitutes to brick and mortar buildings, but as net-widening correctional strategy operationalized to work in tandem. This Paper examines this debate on the effectiveness of electronic ankle monitors using a social marginalization framework. It argues that the current scholarly debate on the use of electronic ankle monitors is limited because it fails to consider the potential harm of social marginalization, particularly for historically subordinated groups subjected to this form of surveillance. It uses system avoidance theory to elucidate the argument that intensive criminal justice surveillance has the counterproductive effect of causing those subjected to surveillance to avoid institutions necessary for adequate reintegration and reduction in recidivism. It offers a theory of the carceral state as malleable, extending beyond prison walls, expanding our carceral reality, and placing great strains on privacy, liberty, and democratic participation. Ultimately, it stresses that a move from decarceration to e-carceration, or from mass incarceration to mass surveillance, will likely fail to resolve, and may exacerbate, one of the greatest harms of mass incarceration: the maintenance of social stratification. Thus, adequately addressing this challenge will demand a more robust and transformative approach to criminal justice reform that shifts a punitive framework to a rehabilitative one focused on proven methods of increasing defendants’ and former offenders’ connections to their community and civic life, such as employment assistance programming, technical and entrepreneurial skill development, supportive housing options, and mental health services.

Keywords: mass incarceration, electronic monitoring, criminal law, criminal procedure, surveillance, criminal justice, e-carceration, privacy, reentry, law and technology, corrections, punishment, sentencing, pretrial, probation, parole, bail, criminal justice reform, big data, data privacy, policing, justice

JEL Classification: K14, K42, K49

Suggested Citation

Arnett, Chaz, From Decarceration to E-Carceration (May 14, 2019). Cardozo Law Review, Vol. 41, p.641, 2019; U. of Pittsburgh Legal Studies Research Paper No. 2020-07. Available at SSRN: https://ssrn.com/abstract=3388009

Chaz Arnett (Contact Author)

University of Pittsburgh - School of Law ( email )

HOME PAGE: http://www.law.pitt.edu/people/chaz-arnett

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