VOLUME 17, ISSUE 3, PAGES 1-30 (2016) Criminology, Criminal Justice, Law & Society

E-ISSN 2332-886X Available online at https ://scholasticahg .com/criminology-criminal- justice-law -society/

2014 Paul Tappan Lecture

Entrepreneurs of Punishment: How Private Contractors Made and Are Remaking the Modern Criminal Justice System- An Account of Convict Transportation and Electronic Monitoring

Malcolm M. Feeley

University of California, Berkeley

Invited Article © 2016 by the Criminology, Criminal Justice, Law & Society and The Western Society of Criminology Hosting by Scholastica. All rights reserved.

In this essay, I explore two developments in the "alternatives" to earlier harsher penalties, in actuality, criminal process separated by 300 years. The first is both have significantly expanded the reach and transportation of convicted felons from England and severity of the criminal justice system. They are add­ Ireland to North America in the 17th and 18th ons, additional punishments, not benign alternatives centuries. The second is electronic monitoring of to or replacement for harsher forms of punishment. offenders and those released prior to trial, which They are public-private partnerships that expand began in the United States in the 1970s and expanded rather than contract the reach of the state and the in the 1980s and 1990s, but whose potential has yet reach of the criminal sanction. to be realized. It may seem strange to connect such Taken together, along with important disparate practices, which occurred more than three developments in between that I will touch on toward centuries apart, but I hope to convince you that there the end of this essay, these two innovations constitute are some parallels in their nature and function that significant, but neglected, chapters in the link them. Together, I suggest that they reveal development of the modern Anglo-American valuable insights about sources of innovation in the criminal justice system. They reveal the role that criminal justice systems in England and the United entrepreneurs in commercial enterprises have played States, two "weak states" that stand in sharp contrast in introducing innovations into the criminal process. to developments in their continental counterparts To explore this thesis, this essay is divided into (Damaska, 1981 ). In fact, the two innovations I three parts. The first part recounts the practice of examine here may be anchors in a more or less sending convicted felons to North America beginning continuous process of innovation and development. in the early 17th century and continuing until the They share two important commonalities. First, both practice ended abruptly with the American were radically new innovations introduced by private Revolution. The practice was then radically contractors who sought to harness market forces to reconceived and continued on in Australia untill868. develop and supply new forms of social control. The second part deals with the contemporary Second, although both are widely understood as development of electronic monitoring, from its

Corresponding author: Malcolm Feeley, UC Berkeley School of Law, 226 JSP, 2240 Piedmont Ave., Berkeley, CA 94720, USA. Email: [email protected] 2 FEELEY

experimental phases in the 1960s and 1970s, to its short life. In the 16th century, Spaniards sent some embrace in the 1980s and its expansion since then. criminals to the frontiers and North Africa to My conclusion identifies still other innovations that construct and maintain highways and presidios. may follow a similar pattern of development and France had its Devil's Island in the 19th century. makes the case that the modern Anglo-American Russia, and later the Soviet Union, had Siberia. criminal justice system has been shaped in Elsewhere in Europe, criminals were put to work in considerable part by private contractors. It concludes coal and iron mines. In many ways, banishment with a discussion about what we miss when we blended into forced labor-convicts were employed characterize these developments as privately to work in the mines, to build highways, and to work administered "alternatives" rather than significant on other public projects (see Rusche & Kirchheimer, innovations and expansions of social control. 1939/1968; Sellin, 1976; Melossi & Pavarini, 1981). But English transportation was distinct. Apart from Russia's longstanding reliance on banishment to Siberia, these other forms of punishment were almost The and always ad hoc and remained somewhat idiosyncratic. In contrast, as British transportation emerged, it Although the history of Australian transportation constituted a rationalized and deeply institutionalized is well-known (Hughes, 1986; Neal, 1991), the national policy, despite the fact that it was largely history of transportation to North America remains organized and operated by private merchants. (For obscure (exceptions are Oldham, 1933; Smith, 1947; some standard histories of punishments before the 1965; Eskirch, 1987; Beattie, 1986). Yet, in respect prison, see Rusche & Kirchheimer, 1939/1968; to the history of criminal justice, the earlier form of Melossi & Pavarini, 1981; Sellin, 1976; Pike, 1983; transportation to North America is more important Spierenburg, 1984.) because it was the world's first effective and efficient Transportation developed inauspiciously in the form of mass punishment short of execution. Until early 1600s, but by century's end, was the major then, severe punishments consisted of either form of severe sanction, and it remained so for close executions (which, in fact, were fairly rare), some to 150 years. Its origins are obscured in the distant form of corporal punishment, or a short period of past. Queen Elizabeth's government imported the confinement. In 18th century England, it is estimated idea of galley service into England from Italy and that only one in 10 people sentenced to death were in France, but North Sea waters were too rough, and the fact hanged-the others escaped death by any one of effort was abandoned. Perhaps the first proposal to several well-used alternatives, or other forms of send convicted felons to the colonies was in 1584, imprisonment or mutilation. Once transportation was when the Queen's advisor, Richard Hakluyt, embraced, England had, for the first time, a regular, recommended that criminals who '"for trifles may reliable, and socially acceptable form of substantial otherwise be devoured by the gallows' should be punishment. It quickly became an indispensable employed as a labor source for overseas settlement" intermediate alternative between capital punishment, (Meyer, 2011, p. 4). Four years later in 1598, and short stays in the workhouse or stockade or Parliament adopted "An Act for Punishment of whippings. As such, it transformed the way Rogues, Vagabonds and Surly Beggars" that punishment was understood in English criminal authorized dangerous offenders either to be sent to justice, and, as I will show, dramatically expanded houses of correction or to be "banished out of this the state's capacity to impose substantial sanctions. Realm and all other Dominions thereof, and ... [to] Below, I explore how it was developed and how it be conveyed ...beyond the Seas" (Meyer, 2011, p. operated, and then turn to an examination of whom it 5). In 1615, Thomas Smith, the leader of the hapless affected. land company, The Virginia Settlement, petitioned Banishment is an ancient response to crime. the Privy Council to issue a warrant granting Anthropologists have noted its ubiquity in archaic clemency to 17 offenders who had been sentenced to societies (Hoebel, 1956). The Bible describes death and instead send them to the settlement where banishment and cities of refuge where wrong-doers they could be put to work. Three years later, in 1618, could flee and live safely if they did not return home. 100 homeless children were rounded up on London's Roman law provided for exile of the upper class. In streets and sent to the settlement (Meyer, 2011). early modern Europe, banishment (or its functional It was from this unpromising beginning that the equivalents) took on other, somewhat less lethal, idea of transporting criminals to the colonies took forms. France and Italy commissioned galleys to ply root. Even before transportation emerged as an the Mediterranean and filled them with convicts option, judges, reluctant to hang offenders for sentenced to a life of rowing, which often meant a "trifles," had transformed benefit of clergy from a

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fact-based form of pleading into a legal fiction that established (Grubb, 2000), and by the 1680s, was tantamount to a suspended sentence for first time transportation had become a well-recognized form of offenders (Beattie, 1986). They also supported punishment for serious offenses (Beattie, 1986; unconditional pardons in unprecedented numbers and Eskirch, 1990; Smith, 1947). often imposed fines and short terms in the However, throughout this period, obtaining and workhouse, as well as whippings and time in the arranging transportation remained an informal and pillories, in lieu of executions. Similarly, juries were cumbersome affair. The offender or his family had to loath to convict for certain types of offenses, which, make a successful request to the judge, the judge had while technically felonies and thus punishable by to accede, the Crown had to grant the pardon, and the death, were nevertheless not perceived as major offender had to pay the cost of transportation. Even offenses. Indeed, in a system of private prosecution, when all these steps were taken successfully, things victims had a double set of reasons not to bring a could go wrong. In the early 1700s, William prosecution. They had to bear the cost of bringing a Thompson, a prominent lawyer active in The Old case, even though if they prevailed, they gained Bailey, and a group of judges and others sought to nothing tangible. And often, like others, they felt that simplify this process, which, by then, had become the price of conviction was too high and thus refused routine but remained cumbersome. They pressed bring charges. In addition, inflation increased the Parliament to grant judges authority to bypass the value of goods, thus transforming many petition and pardon process and sentence certain misdemeanors into felonies. While few thought that types of offenders directly to transportation. In 1718, crimes should go unpunished, the absence of a the Parliament obliged. The Transportation Act of system of graded and proportionate punishments 1718 allowed judges to sentence offenders directly to deterred many people from bringing prosecutions and transportation and slightly expanded the scope of many juries from convicting. transportation from its previous informally defined The standard account of English criminal justice limits. With this Act, the government also became history is that transportation emerged to mitigate such deeply involved in the process of overseeing problems, that transporting convicts abroad was an transportation for the hundreds of people who would alternative to the harshness of a criminal justice be transported to the North American colonies every system that insisted on capital punishment for all year. This included specifying who was eligible, felony convictions. As we will see shortly, this was setting out conditions of confinement pending not the case. Rather, the presence of other transportation, outlining procedures for transferring intermediate policies undermines this projected chain convicts from the county gaol to the nearest port, and of causality. establishing the constraints under which offenders But transportation of convicts to the American were to be held until they were safely handed over to colonies did emerge in the early 17th century. It their masters in the New World. After adoption, began as an occasional and ad hoc arrangement, and transportation took off (see Figure 1). by mid-century, a few hundred non-violent felons Like most innovations, convict transportation had been pardoned upon condition that they go and labor was not brand new. It drew on the abroad. Learning of the need for workers in the experiences of related enterprises, and once colonies, offenders and their families would scrape institutionalized under the 1718 Act, it changed together some money, find a shipper willing to take substantially. Familiar with the lucrative practice of the offender, and petition the trial judge who had just the slave trade but without resources to enter into it, imposed the death sentence to in turn petition the less well-capitalized merchants were attracted to the Crown for a pardon on condition that the felon emerging trade in indentured servants (Grubb, 2001). "abjure the realm" at his own expense. As these These were free English people who, hoping for a numbers grew, so too did the attractiveness of the better life for themselves, agreed to serve a period of alternative, both to shippers who sensed a ripening bondage in exchange for free transportation to the new market and to public officials who faced a colonies. A great many of them arrived in the continuing crisis of law and order. By the 1660s, colonies during the 18th century, and they are often transportation had become a recognized and confused with transported convicts. This is not acceptable form of punishment; a working surprising, as the process of transporting and understanding of who might be transported had disposing of them was much the same. Because the developed among judges, and judicial distance was much shorter, it was far cheaper to ship recommendations for pardon and transportation were indentured servants from England than slaves from routinely granted by the crown. Colonial planters Africa. In the beginning, adding convicts to the trade desperate for cheap labor clamored for convicts. By in indentured servants was but an incremental the 1660s, a rudimentary market in convicts had been expansion of business, though as the trade in convicts

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expanded, there was increased specialization with transportation solved the problem, although separate arrangements for handling and disposing of throughout its history, London had to continue to indentured servants and convicts. Eventually, since badger local governments to contribute some portion convicts required considerably more supervision of the costs. As convoluted as it was, the policy while in transit than did indentured servants and were succeeded because there was a robust market for usually directed for different types of work once they convicts. Business flourished. Almost every year arrived, separate arrangements for transportation from 1718 and right up to the American Revolution, were developed for both. At the height of convict the numbers transported to North America increased. transportation, merchants either commissioned or By the time the War put an end to it, transportation purchased ships to carry convicts, and arranged for was just hitting its stride, and probably could have agents to meet them upon arrival, auction them off, expanded indefinitely for years to come. and assemble cargo for the return trip (Oldham, Shippers, believing the war to be but a temporary 1933/1990; Meyer, 2011). interruption in business, turned their ships and The 1718 Act significantly expanded the market decommissioned old naval vessels (the hulks) they for convicts by rationalizing the sentencing and bought for a song into short-term holding pens. They transportation process. At the same time, however, it tried to cover their expenses by leasing convicts out increased the cost. Allowing judges to sentence to work on the embankments on the Thames in offenders directly to transportation expanded its use, London and elsewhere, and expected to resume their but the Act also required shippers to keep convicts in North Atlantic trade at any time. Once the outcome leg irons and under guard until they were disposed of of the war was clear, both merchants and government in the colonies. Still, there was a strong demand for officials undertook a desperate, but unsuccessful, convict labor in the colonies; convicts were much search for alternative markets, considering Nova cheaper than either slaves or indentured servants. Scotia, the Caribbean, and West Africa. Convicts were a bargain: They cost about two-thirds Transportation was eventually resumed in 1787 (to the price of an indentured servant and still less than a Australia), but in a radically different form. slave, and their period of service was seven or more Specifically, whereas pre-war transportation had been years rather than the typical four or five years for an managed almost entirely by private contractors, indentured servant (Grubb, 2001). The market was Australian transportation was carried out by the all the more robust because shippers had ample Navy. products for the return trip from the colonies to Following a long and bitter debate, the England. Back haul consisted of tobacco and cotton Admiralty prevailed with its proposal to solve two from Virginia and Maryland to take to England for problems at once: Transporting felons to Australia processing. Indeed, business was so lucrative that in would solve the convict problem, and it would also 1767, the English government was able to negotiate counter the expanding French presence in the South contracts to transport offenders without having to Pacific. In 1789, 13 years after the last convicts were offer a subsidy to take all those who could be delivered to Chesapeake Bay, the first convicts were transported. In the past, shippers had balked at taking deposited in Australia, a land totally empty of very young people, as well as older and sickly felons, Europeans, and a new chapter in transportation on the grounds that they would not fetch high enough commenced. It was organized and operated not by prices at auction, and subsidies had been used to merchant shippers but by the British Navy, and it sweeten the deal. But by 1767, business was brisk turned out to be one of the most expensive ventures enough that the government was able to obtain ever undertaken by the British government. Convicts contracts without offering subsidies. Throughout the were the first Englishmen to step foot on the entire period of transportation, Chesapeake Bay was Australian shore (Hughes, 1986; Neal, 1991). There the destination of choice for the convict merchants. was no one to whom to sell them, and indeed, no one The Act institutionalized transportation in a way to watch over them. So, naval officers were cajoled that transformed it from a private business with mixed success into overseeing the convicts who arrangement into a government-sponsored were put to work constructing the first modern commercial enterprise. But it was also public policy, buildings in what are now Sydney, Port Arthur, shaped by the interests of entrepreneurs and Freemantle, and Norfolk Island. Indeed, convicts embraced by a weak central government desperate to themselves constructed some of the first prisons for do something about the law and order crisis but their own housing. Bentham's plans for Panopticon hampered by its own lack of institutional capacity. were first put to use in Port Arthur in Van Dieman' s Traditionally, local governments bore the cost of Land (Tasmania). Eventually, as colonization imposing punishments, but they resisted increasing expanded, some convicts were sold into service much expenditures in this area. Privately administered as they had been in America, but overall, in contrast

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to North American transportation, it was a publicly money just as he had completed construction on a managed operation. Still, the enterprise was special purpose-built ship to transport convicts successful beyond anyone's wildest imagination. A (Oldham, 1933/1990). new continent was populated by English settlers. All The stories of flamboyant shippers and troubled told, over 110,000 convicts were transported to investors add color, but they do not explain the Australia, the practice only halting in 1868 when the success of transportation, which lies in the logic of increasing numbers of free immigrants were the market for convicts in comparison to other forms successful in stopping the importation of the of labor (Grubb, 2000, 2001). Rather, the enterprise "criminal classes." succeeded because a market was created; there was The difference and the demise of Australian both supply and demand. Indeed, once the market transportation, however, does not take away from the was established, it grew and succeeded because there fact that it was an extension of an idea and policy that was a surplus of criminals in England and a strong­ had been developed over two hundred years earlier near unquenchable-need for labor in the colonies. by entrepreneurs who saw an opportunity, took steps As we have just seen, transportation was an to establish a market, and collaborated with a weak innovation of vast significance and convict trade an central government to make the plan work. In important part of colonial trade. It became a powerful Australia, the government embraced the new sanction that defined English penal policy for entrepreneurs' wildly successful innovation and made well over 200 years, and, as we will see, it set in it its own. Altogether, the two forms of motion still more changes that shaped Anglo­ transportation operated successfully for over 250 American criminal justice systems. Like so many years, and during four-fifths of this time, it innovations, it had an inauspicious beginning. At its constituted the primary form of serious punishment outset, no one could have imagined its eventual meted out in the criminal process. Its numbers effects. Perhaps for the first time in history, a state dwarfed the numbers who were executed during this had a form of punishment short of death that was same period. And only in transportation's last years socially acceptable, practical to administer to masses did imprisonment in England constitute a serious of criminal offenders, and relatively inexpensive. competitor. Transportation revolutionized not only punishment One could provide an account of the rise of but criminal justice administration generally. transportation in the 17th and 18th centuries as a The history of the English criminal justice story of dramatic risk-taking by bold entrepreneurs system does provide some explanation for the success and amoral businessmen, and many such accounts of transportation. Until transportation was have already been written that are eminently readable institutionalized, the English criminal justice system (e.g., Oldham, 1933/1990; Tracy, 1990). Certainly, had been a largely amateur and ad hoc arrangement, like all innovative efforts, transportation had its juicy depending upon local volunteer law enforcement bits: its share of visionaries and larger than life risk­ officials, judges, and a variety of jerry-built takers; its booms and busts and bankruptcies; its arrangements to administer punishments. This is not scandals, bribes, cronyism, and double dealing. to say that there was no organized criminal justice Although transportation got off the ground because of sector prior to the 18th century, however; only that it intrepid innovators and risk takers, certainly its limped along ineffectively and inefficiently. development was accompanied by all the Authority and cost were divided between the crown shenanigans one might expect in the early stages of and local authorities. Since neither was willing to establishing a new market and orgamzmg make investments to rationalize the process, criminal government contracts. Consider, for example, the justice administration was chronically underfunded first request for convict-laborers from Thomas Smith and woefully inefficient. With transportation, things of Virginia, an ill-conceived business venture put changed, providing a market solution for the together by politically-connected investors that stalemate. It proved to be highly effective, in part suffered from a chronic shortage of labor. In London, because it placed the greatest risk burden upon the convict transportation attracted the attention of entrepreneurs tasked with devising the scheme and Jonathan Foreword, a merchant who had found fame incentivized handling criminal offenders in an and fortune in the Africa-to-Jamaica slave trade. He efficient, effective, and relatively inexpensive way. saw convicts as a lucrative and comparatively less The state seized upon this, developed it, rationalized risky side business. In Bristol, Duncan Campbell, a it, institutionalized it, and in Australia, eventually Scottish merchant, and his colleagues operated a took it over. It was England's, if not the world's, successful business shipping convicts until one first form of mass punishment. indispensable partner died suddenly and another The market solution for transportation provided a unscrupulous associate absconded with Campbell's model for other reforms to follow. The reluctance of

Criminology, Criminal Justice, Law & Society- Volume 17, Issue 3 6 FEELEY both crown and local officials to bear the cost of measure between capital punishment and the factory­ other forms of criminal justice administration came to like prison, or simply as a colorful feature of be addressed by market solutions. Law enforcement Australian colonization. These accounts, however, and private prosecution both came to be fail to recognize the importance of the measure and supplemented by market solutions that expanded the the circumstances surrounding its development. efficiencies of these functions. Indeed, the modern This failure requires correction. Although the prison has its origins in the design of a prison that standard account of transportation as a transitional would be run by contractors and more than pay for policy that facilitated the move from scaffold to itself (Feeley, 2002). prison is consistent with a cursory review of gross figures, more careful analysis reveals that executions as a Distinct of' Serious declined precipitously well before transportation Punishment came to be widely used, and once it was, the numbers We are so accustomed to prisons measuring out and rates of executions did not change much. punishments in terms of months and years and of Curiously, this evidence has been overlooked, prisoners and inmates inhabiting claustrophobic cells although it is readily available (see Feeley, 2002; that punishment has become synonymous with Rubin, 2012). This evidence indicates that the prior imprisonment. Prisons and jails have so completely accounts of transportation have been, at the very captured our imaginations that we fall silent when least, incomplete. In light of it, transportation must be asked to name other meaningful alternatives. understood as a regime of punishment in its own Surprisingly, though, the mass factory-like prison is a right. In the section above, I began this corrective relatively new invention, a product of the 19th analysis and showed how transportation constituted a century. In England, before the prison, there was revolutionary innovation in technology and political transportation. In other places, there were a variety of economy that linked private entrepreneurs and the ad hoc methods of punishment, including state. In this section, I will demonstrate the effects banishment; slavery; and forced labor on public transportation had upon the expansion of the capacity works and, at times, mines, agriculture, and the of the state to punish, and underscore just how workhouse. On the Mediterranean, there were a few important this was. galleys. In the late 1500s and early 1600s in England, So, who was transported, and what would have the most severe forms of punishment declined happened to them in the absence of transportation? dramatically. By 1650, executions had reached a Answers to these and related questions require us to new historic low and remained there for the next move still further back in time in order to review the century and a half (1650-1800), at which time they forms of punishment meted out by the courts before began to decline still further and almost to extinction the era of transportation. In order to assess any by the late 1800s. By its end, transportation had impact of transportation on hangings, we need to affected well over 200,000 offenders in North examine the numbers of executions before, during, America during the interregnum with the hulks and in and after the period of transportation. As we will see, Australia. This raises the following question: Did such a review reveals that capital punishment transportation replace executions? In other words, declined precipitously well before transportation took did offenders escape execution by means of off, and once it did, execution rates remained transportation? As important as it is, this has not relatively stable. This raises two sets of questions. been addressed carefully by historians. First, once transportation took off, what sorts of When we think of criminal sanctions, our penalties did it replace? Second, what effects did the historical imagination wraps around capital 1718 Transportation Act have on transportation and punishment and our contemporary imagination seizes on executions? upon the prison. As a consequence, we have largely Capital Punishment and its Decline. In the ignored the regime of sanctions examined above, previous section, we noted that transportation did not although by the numbers, transportation is on par become a standard form of punishment until with both capital punishment and imprisonment. In sometime after the 1660s. 1 Thus, to show that terms of its longevity, transportation was notable as it transportation was an alternative to executions, as is had a run about as long as the modern mass prison so often claimed, we should expect to see a marked has had to date. Nevertheless, with few exceptions, decline in executions after transportation was the magnitude and comparative significance of institutionalized. But this is not what happened. transportation has been overlooked by historians as Although data are not complete for the period in well (Beattie, 1986, is an important exception). question, there is ample evidence, and it all points in Unfortunately, when it has received attention, it is the same direction: Executions in England declined often depicted as a transitional phase or stop-gap precipitously, in both absolute numbers and rates,

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between the late 1500s and the early to mid-l600s. asserting the plea. If so, they would be branded with Around or just after 1650, executions in England a "B" on their hand so that they could not claim the reached a historic low and remained there for about privilege a second time. 100 years, after which they declined still further Despite this, most historians (with some notable throughout the 19th century. Given this, it is exceptions, including Beattie, 1986; Eskirch, 1990; problematic to assert that transportation could have Smith, 1947) associate the decline in executions with caused or even been associated with the great decline the increase of transportation. For example, Sir Leon of capital punishment that so many writers attribute Radzinowicz (1948), the acknowledged dean of to it. Put simply, capital punishment declined contemporary empirically-minded English criminal precipitously well before transportation emerged as a justice historians, assumed a causal connection. standard form of punishment. Although one cannot Other scholars have embraced his view uncritically. claim that transportation had no effect (and, in fact, Radzinowicz saw transportation as a humanizing we will see that it likely did have some) on function during the transitional stage in the steady executions, this sequence of development reveals that progress in English criminal justice beginning with transportation did not emerge as a more benign the Enlightenment and culminating with proportional punishment that replaced the scaffold. The great punishment and the penitentiary adopted in the Age decline took place much earlier. Few of those of Reform. He writes that shipped to the colonies would have been executed in the absence of transportation. the fact remains that by the generous use of To show this, we need to work through some this power [to pardon upon condition of not-very-digestible local records. Though all of them transportation] the Crown achieved a are incomplete and none of them directly address our marked relaxation of the severity of criminal question, in the aggregate, they reveal material that law. Hundreds of offenders were thus saved points in the same direction and to the same from a punishment [execution] which was conclusion: The dramatic decline in executions took admittedly out of all proportion to the place before the rise and institutionalization of gravity of their offense, ... [and] served to transportation. bridge the gap between these emerging Although there are no nationwide crime figures social needs and the old law, during the available for Early Modern England, available local inevitable state of transition. (pp. 136-137) records, including records for some areas in metropolitan London, all tell the same general story: A number of well-respected historians have echoed Executions remained at something of a steady plateau this view, and it now constitutes the received wisdom throughout at least the last half of the 1500s and the for the decline of executions. early 1600s, after which there was a relatively sudden As I suggested above, however, a careful review and widespread marked decline that leveled off of the evidence shows that there is little if any sometime around 1650. Two factors account for this connection between the decline of capital punishment decline. First, there was a decline in violence in and the rise of transportation. One important source general, and crime in particular, during the 17th comes from Middlesex, which by the late 17th century (Gattrell, Lenman, & Parker, 1980), but this century was the most highly populated area in would account for only a modest decline in England and the center of larger London. In his executions. Second, and more important, was the extensive and meticulous comments in the prefaces to changing nature of criminal sentencing from the late his four volume compilation of the Middlesex 1500s and into the middle 1600s. Dispositions Sessions Rolls for the years 1540 to 1820, John involving benefit of clergy, whippings, the pillory, Jeaffreson (1886-92) traced the precipitous decline of the workhouse, and the gaol increased markedly executions over the longue duree. He tallied up throughout the late 17th century. Originally, benefit names of those sentenced to death during the period of clergy meant what the term implies: Clergymen and then collated them with those subsequently could claim that they were not accountable to crown reported as executed. He found that about 800 courts and could only be judged by ecclesiastical people per year were executed from between 1540 authority. In order to assert this privilege, the accused and the early 1600s, and after that, it fell to a low of had to read a passage from the Bible on the about 100 per year (Jeaffreson, 1886). assumption that only clergymen could read. Over Jeaffreson's findings are reinforced by scholarly time, the plea was expanded and eventually work addressing other areas of London and England transformed into a legal fiction; at a judge's discretion more generally. In the most detailed and expansive if selected offenders were able to read or recite or study of crime and punishment in 17th and 18th even repeat the verse, they might be successful in century London (including Middlesex and

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neighboring Surrey), John Beattie (1986) reported Considering these figures in national context and that "over the seventeenth century there was a in light of other studies, including some I have decided decline in several counties (and apparently discussed here, he continued: nationally) in both the absolute number of felons hanged and the proportion of accused felons Evidence from the south-eastern counties, eventually brought to the gallows" (p. 169). Puzzled from Cheshire, and from Devon, combines by these findings, he probed the figures closely, and to demonstrate that this was a national trend, concluded that and that in some areas the number of persons executed for felony in the early there [was] no evidence, for example, that eighteenth century may have been about a crime and social disorder were thought to be tenth of that current in the early seventeenth less a problem in the metropolis of London [emphasis added]. ...To put it simply, a in the last decades of the seventeenth society which is executing only a tenth of century. Indeed, if anything, there was a the criminals it was executing a century growing anxiety about such problems in the previously is either experiencing capital and a determination to find ways of considerably less crime, worrying less about dealing it them .... If evidence from Surrey is the crime it is experiencing, or being any guide, the level of capital punishment affected by a combination of these factors. declined in the metropolis as well as in (pp. 262-263) provincial centers in the seventeenth century. (p. 169) Another study by Griffiths (2004), reporting on figures from Norwich in eastern England between Others make similar observations. In his analysis 1540 and 1700, also reported a marked decline in of crime and punishment in Chester, in the northwest executions in the middle of the 17th century: "The of England on the Welsh border between 1550 and penal limelight was dimming [in Norwich] before 1750, James Sharpe reported a steady level of 1650, when the number of death sentences also fell executions between 1580 and 1640, followed by a from its Elizabethan summit" (p. 107). Griffiths marked decline over the next few decades and into further expanded: "In the fifty-year period, 1570 and the next century. On average, there were 90 1620, Norwich justices imposed 151 death sentences, executions per decade between 1580 and 1640, and while in the fifty-year period, 1630-1680, the number just under 20 per decade from 1650 to 1710 and on declined by two thirds, to 54. Executions peaked in until 1750 (Sharpe, 1984, 1998). Unfortunately, the 1590s, when forty-four felons were hanged" Sharpe did not provide figures by year, or even by (Griffiths, 2004, p. 120). Here, too, the most decade; still the changes he showed for the two dramatic decline in severe punishment took place in periods are dramatic and consistent with those the first half of the 17th century, and certainly not the reported above. 18th, well before the rise of transportation. Any number of factors might account for this In an overview of studies on the death penalty in change, and Sharpe has probed them with care. He the 17th and 18th centuries, Jenkins (1990) also noted noted that the figure of 90 executions for the period the marked decline of executions in the early half of between 1580 and 1640 did not represent an unusual the 17th century and contended that the great Age of peak from earlier years, and if anything, was Reform was the 17th, and not the 18th, century as is somewhat lower than the preceding decades. Nor commonly asserted. He argued that "[between 1600 was the new low temporary; it continued well into the and 1750, and especially the first third of this period] 18th century before it declined even further. the absolute number [of executions] had fallen from Furthermore, it was not an artifact of reporting or roughly 800 to 100 or 80 per year [for all of transient periods of war, peace, crisis, or turmoil. England], while the execution rate in 1750 was Although some variation can be accounted for by perhaps 6 percent of the figure in 1600" (Jenkins, these factors, the singular degree and the direction of 1990, p. 130). the change are both dramatic and unmistakable. Despite his own analysis of the figures, Jenkins Between 1580 and 1640, the number of executions repeated Radzinowicz's mistake. He wrote that, was many times greater than the number between 1640 and 1710. Acutely aware of the significance of in fact, the years between about 1630 and this, Sharpe wrote that "a court which could execute 1750 may have marked the real shift away 166 felons in the 1620s and tens in the first decade of from mass capital punishment, when the the eighteenth century was obviously reflecting a gallows were replaced in the first instance fundamental transition" (Sharpe, 1998, p. 91). not by the factory-prison, but by the much

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less studied expedient of transportation. The Conveniently, much of the work to address this question of chronology has major second set of related issues has already been done implications for the rise of imprisonment (Feeley, 2002; Rubin, 2012). Rubin (2012) has during the eighteenth century and for the subjected the replacement thesis (transportation nature of penal change generally. It also replaced benefit of clergy and not executions) for suggests that historians of criminal justice those sentenced at the Old Baily between 1684 and need to pay more attention to the rather dark 1776 to rigorous scrutiny. She asks, "Did years of penological history in the century transportation cleanly replace capital punishment or before 1750. (Jenkins, 1990, p. 130) did it have other, unintended consequences for the criminal justice system" (Rubin, 2012, p. 817)? Jenkins was certainly right in emphasizing the Indeed, she elaborates on the issue and asks to what need to pay more attention to both transportation and extent the Act snared people in its net ("net to chronology. The large numbers who were widening"). Examining all cases disposed of at transported and its long duration certainly suggest, as London's Old Bailey between 1684 and 1776, and he maintained, that it should be treated as a separate drawing on additional materials published in the and distinct regime of punishment in its own right. Parliamentary Papers of 1819, she undertook a Had he paid even more attention to chronology, multivariate time series analysis to assess how however, he would have seen that the figures he various punishments-executions, transportation, examined show that transportation emerged well after whippings, and the like-affected each other and the great decline in executions. At best, the rise of were affected by the shifting mix of cases that came transportation could only have had a marginal impact before the court over the 84-year period. Treating on the decline of executions. each sentence by itself as a dependent variable, and The figures reviewed above consistently reveal other sentence options and offense types as that a dramatic and lasting decline in executions took independent variables, she assesses the impact of place between the late 1500s and middle of the each sentence option and offense type on sentences 1600s. From the comparison of the numbers of from 1684 to 1718, before adoption of the executions in the early 1600s with executions in the Transportation Act, and from 1718 to 1776, after the late 1600s and early 1700s, it is clear that as adoption of the Act. transportation emerged, it replaced benefit of clergy The graph in Figure 1, based on figures drawn and not the gallows. While these several scholars are from the records of the Old Bailey (Old Bailey correct to insist that the great era of decline took Sessions Papers [OBSP]), provides numbers for each place in the 17th century and not the 18th, as so many type of major punishment actually imposed between historians of criminal justice reform contend, these 1684 and 1776 and breaks this long period down into same revisionist historians have not paused to two parts, the 34 years before adoption of the consider this decline in light of the rise of Transportation Act of 1718, and the 57-year period transportation and reflected on the independence of after, in order to determine what, if any, effects the the two changes. Act itself had on sentencing. The single most Thus, we are left with some intriguing questions: prominent feature of the graph is the dramatic rise of If executions declined precipitously before the rise of transportation. It comes to dwarf all other transportation, what effects did the rise of punishments combined. However, this graph alone transportation have? Did it displace still more cannot tell us which sentence would have been executions, or did it displace other sanctions? That imposed in the absence of transportation. To get at is, what would have happened to offenders had this, Rubin (2012) undertook a multivariate analysis transportation not been institutionalized? As I will that permitted her to consider each variable in show, transportation did have an important effect, but isolation as it were and to draw up a set of not the one so often attributed to it. For the most complicated but persuasive findings, which can be part, it replaced lesser, not more, severe punishments, summarized as follows: and, as such, it transformed the nature of the English criminal process. In particular, it replaced benefit of Offenders who once would have received clergy, which as transportation continued to expand, [fines, branding, and/or whipping] were all but disappeared. To a lesser extent, it also suddenly much more likely to be replaced the pillory and whipping. At best, the rise transported, and thus ... transportation did of transportation only had a marginal effect in further play some mesh-thinning role .... In general reducing executions. We examine this claim in the death sentences decreased after the 1718 paragraphs below. law, both in the short term and the long term. On average, death sentences were

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Figure 1. Distribution of Punishment at the Old Bailey, 1674-1776

Punishments at Old Bailey, 1674-1776

1680 1700 1720 1740 1760 1780 Year

fine branding whipping death transportation

Source: Rubin, 2012.2

about 8.5 percent less common for all crimes Sentences to transportation replace death in 1718 and after, and 13.3 percent less sentences, but the availability of common for theft offenses. However, death transportation did not replace executions sentences for non-theft offenses increased once a convict was condemned; the slightly thereafter.... Overall, these results Transportation Act had unintended support the suggestion that transportation consequences. Secondary punishments­ helped to replace capital punishment, but branding, whipping, and fines-declined only in the case of theft offenses (which heavily ... suggesting that transportation was represented the bulk of the caseload) .... The used to punish offenders who would have portion of individuals executed among those received what was considered a less severe sentenced to death .. .increased following the punishment .... Moreover, this decline was Transportation Act. (pp. 833-836) proportionately much larger than the decline observed in capital sentences, suggesting Short term and long term effects with regard to that the unintended mesh thinning executions vary somewhat, but "in the long consequences of the Transportation Act was run ... rather than decreasing the frequency of far more significant for the criminal justice execution, transportation apparently made execution system than its role in partially replacing more likely for those capitally sentenced" (Rubin, capital punishment. (Rubin, 2012, p. 840) 2012, p. 839). She summarized her central conclusions: Together the examination of these two periods, the late 1500s to the mid-1600s and Rubin's examination of the period from 1684 to 1776, shows

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conclusively that transportation had only a marginal have been the engine that sparked still other impact on reducing executions. Executions declined innovations that followed: the development of the precipitously before transportation was used in any modern police, modern prosecution, and the modern significant numbers, and executions were replaced by prison. expanded use of benefit of clergy. During the second Perhaps more than any other single development period, as transportation was institutionalized and in the 18th century, transportation set the agenda for expanded, it had only a slight impact on executions. criminal justice reform for the next 150 years. It Rather, its greatest effect was to replace benefit of inspired entrepreneurs to propose still other market­ clergy and whipping with a harsher sanction. Rubin based solutions for public problems. Encouraged by (2012) emphasized this when she concluded that the success of privately financed transportation and William Thomas, the principal author of the spurred on by the abrupt end of transportation due to Transportation Act of 1718 and opponent of the death the American War of Independence, Jeremy Bentham penalty for most offenses, may have died believing campaigned obsessively for the construction of a that he had established a reliable alternative to capital privately financed and operated prison, which he punishment, while, in fact, its primary unintended expected to run (Feeley, 2002). Although his idea effect was to sweep up a great many lower-level was ultimately rejected in England (due in part to the offenders and subject them to markedly harsher post-war redirection of transportation to Australia), punishment (p. 841). his ideas did help legitimate the idea of the mass ,,,,.... ,,.t,,t;,,, Conclusion factory-like prison in North America and England, some of which were organized to operate on a profit The discussion above has taken the reader or at least be self-financing (Livingston, 1873; Rubin, through a painstaking analysis, tracing the decline of 2012), and the use of prisons in mining, agriculture, capital punishment and the rise of alternative and manufacturing (McLennan, 2008). Still, other punishments. It may appear to be an obscure innovations promoted by entrepreneurs seeking to discussion of punishment 300-plus years ago, but I exploit the labor of convicts and minimize the cost to want to insist that the exercise is important and has the state of punishment followed these innovations. relevance to criminal justice reforms today. My point Among the most prominent in the United States were in all this is to show that despite the contentions of chain gangs and convict lease systems and productive leading contemporary criminal justice historians like labor within prison settings themselves. There may (e.g. Radzinowicz, the primary author of the not be an easily traceable direct line between Transportation Act itself, and still others), transportation and the chain gang, but they share two transportation had little (although some) effect on the common features: They depend upon entrepreneurs numbers and rates of executions. However one looks to establish and maintain a market in convicts, and at it, transportation was not a more benign alternative they shift some of the cost of punishment away to the to executions. In contrast to what preceded it, state and to the market. transportation dramatically expanded the state's The fact that private programs initiated by capacity to impose severe punishment. Further, once entrepreneurs have not always remained private, or transportation was institutionalized, as Rubin (2012) that they were less efficient and effective than has shown, its impact on reducing executions was initially expected, does not mean that the ideas and marginal; its overwhelming effect was to replace a the sources of these innovations were unimportant or less severe sanction for a harsher sanction. In short, irrelevant. Their initial, if even at times only partial, transportation was an awesome expansion of state success paved the way for the acceptability of new power. It increased many-fold the numbers of those arrangements and new institutions and in so doing, receiving substantial sanctions. It strengthened the helped expand the scope of the criminal sanction. state's criminal justice system and increased a weak Transportation to Australia involved unprecedented state's capacity to punish. expenditures by the Admiralty and Home Office, but Once it was established, transportation may have still, it was the success of the merchants who had been the most effective component of the English shipped tens of thousands of convicts to North criminal justice system. Anchored in the creative America that showed that transportation was energy of the market place, transportation in short workable. The genius of this initial effort should not order increased both the efficiency and effectiveness be slighted. It rests largely on the fact that it was an of the state's capacity to punish at minimal cost. In innovation devised by entrepreneurs who operated it contrast, the state's capacities to arrest, prosecute, for 150 years, at which time, it was taken over by the and adjudicate remained mired in pre-modern state and used successfully for another 80 years. practices. As I have suggested elsewhere (see Feeley, 2002), the success of this innovation may

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the United States, and perhaps the world, and Judge Love went on to have a successful second career The first electronic device used to monitor promoting his idea (see DeMichele & Payne, 2009; offenders remotely was invented by twin brothers Mainprize, 1992). Ralph and Robert Schwitzgebel (later shortened to The market grew by leaps and bounds. In 1962, Gable) in the early 1960s (Schwitzgebel, 1969). At the Gable brothers were able to communicate over the time, the brothers were graduate students at two-way radio with their clients through a series of Harvard, one working with Timothy Leary and the beeps from a set of buttons on a cumbersome belt other with B.F. Skinner. Combining the mind­ (Gable & Gable, 2005; Schwitzgebel, 1969). Twenty expanding spmt of Leary with the operant years later, Judge Love could drive by the homes of conditioning theory of Skinner, the Gable brothers his probationers and use radio frequency (RF) created a remote radio controlled device to monitor emissions to determine if they were there, and if not, juvenile delinquents in the field. Their device, a call the police. Within a few years, micro radio bulky waistband, permitted two-way communication transmitters worn by offenders could send signals to by pushing buttons that offered opportunities to seek remote receivers, and they could be monitored as guidance and send signals of both positive and they moved about from home to work and school and negative reinforcement to the client. The twins the like. Transmitting monitors continued to shrink continued to experiment with their invention on and in size and cost and were increasingly effective and off over the next decade, and although Robert wrote a efficient. Glitches, false positives, and false book (1965) and some articles about the effort (1964, negatives declined to nearly zero, and new designs 1969), and obtained a patent for his communications made electronic monitors attached to the ankle-or device, they were never able to secure sufficient electronic tags, as the British call them-tough and support to develop a prototype or convince any virtually tamper-proof. probation department to embrace their idea. Like so By the late 1980s, a vast electronic monitoring many innovators, the Gable brothers were ahead of industry had emerged to serve the various needs of their time. law enforcement and other criminal justice agencies. By many accounts, the next person to experiment Dozens of companies designed and developed with electronic monitoring of offenders was Judge specialized equipment to monitor offenders and Jack Love of Albuquerque, New Mexico. In 1982, he pretrial releases in the community, each competing hit upon the idea while reading a Spider-Man comic with the other on cost, effectiveness, capabilities, and strip in which Spider-Man's archenemy Kingpin services, ushering what was once an experimental attaches a tracking device to him so that he can technique into the mainstream. Vendors began to monitor Spider-Man's every move. In his "Eureka!" appear in droves at professional conferences of moment, Judge Love asked himself, "Why can't I use police, prosecutors, judges, sheriffs, probation, this on offenders I'd rather place on probation than in pretrial services, drug treatment programs, and the jail?" He proceeded to badger a friend who worked like, offering a myriad of electronic devices to for Motorola to construct such a device, who obliged. expand their reach and improve their effectiveness. Judge Love made his proposal at exactly the Rapid-paced innovation made new electronic right time and to the right person. As forward monitoring systems obsolete almost as soon as they looking as they were, the Gable brothers were clinical were brought to market. Early RF monitors of the psychologists tinkering with new technology. Judge 1980s began to be supplanted by GPS units in the Love turned to someone working in the midst of the 1990s, and these, in turn, have begun to be electronic revolution in which the industry was on the supplanted by more sophisticated multi-purpose units look-out for practical applications and new markets in the early 2000s and 2010s. Further, as prices for its products. Beginning in the 1970s, Dick Tracy­ plummet, ideas for their use increase proportionately. like gadgets had begun to multiply like rabbits in If FedEx can track packages it sends around the springtime: cell phones, remote controls for TVs, world in real time through tiny electronic chips cheap two-way radios, implants to track migrating embedded in its packages, so too can parole officers whales, devices for police to track the cars of track offenders released into the community in real suspects or trucking companies to track their fleets, time. The devices are small, unobtrusive (no larger and mechanisms to monitor the elderly and infirm. than a cigarette pack), inexpensive, reliable, and can The move to construct and develop a market in be attached to an offender, who then remains under correctional administration was simply one more 24/7 surveillance. As of this writing, RF systems inspired step forward. Once built, Judge Love began continue to be used and preferred by many to use it in his courtroom. This was the first known (especially those concerned with privacy, because the judicially-sanctioned use of electronic monitoring in capacity of RF units is limited; they do not permit

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24/7 surveillance). But as the fourth or fifth the cost. It costs $35,000 to $50,000 a year to house generations of GPS+ monitors emerge and prices a prisoner but only $1,500 to $3,000 to maintain them continue to decline, it is difficult to imagine that RF in an electronic prison. Of course there will be systems have much of a future. 3 failures and a variety of auxiliary costs, but at this Already, electronic monitoring devices can price, it is possible to absorb a great many failures "read" body sweat and send signals to central and still administer a cost-effective and safety­ monitors providing information about blood-alcohol conscious program. And if, in the future, devices can levels (Barnett, Tidley, Murphy, Swift, & Colby detect aggressiveness before it explodes into 2011; Fell & McKnight, 2013; Flango & Cheesman, violence, all the better. Furthermore, proponents of 2009; 2008; Humphreys, 2013; Larkin, 2016; risk analysis claim high reliability and accuracy in Marques & McKnight, 2007; McKnight et al., 2012). their new actuarial prediction models. Not only is Operational remote drug testing devices are just there a vast new industry promoting its myriad around the corner (Paterson, 2007a; 2007b). Devices electronic wares, there is now an extensive library of to measure signs of anxiety and anger, and hence writing by academics, criminal justice practitioners, propensity for dangerousness, will soon be available and industry representatives promoting electronic (Paterson, 2007b ). A vast array of monitoring monitoring and predictive models as efficient, devices is feasible. Breathalyzers attached to economical alternatives to incarceration, as well as automobile ignitions can shut down cars and, if effective tools for treatment and rehabilitation. The combined with electronic monitoring, can provide question remains, though: Will new devices become information to law enforcement and insurance alternatives to prison or add-on features of probation companies. Combine GPS systems with micro­ and pretrial release? cameras, finger print scanning technology, retinal Companies like the one Judge Love turned to scanning, facial recogmtwn technology, and after his comic-strip epiphany had already begun ubiquitous CCTV cameras, and who knows where it developing applications for their new electronic willlead.4 inventions and immediately saw the implications for In England, a great many probationers no longer application within the criminal justice system. A host report to human probation officers, but instead, punch of innovative companies and their subsidiaries began in at ATM-like devices located at convenient developing a plethora of devices for use by law locations, identifying themselves with thumbprints enforcement and criminal justice agencies. At first, just as one unlocks a cellphone. Honing these they sought to obtain supplementary contracts to technologies requires some degree of trial and error. install and service the equipment and to train law If, for example, the thumbprint procedure is enforcement officials to use it, and later, they unreliable or proves to be easily circumvented, proposed to administer the new electronic monitoring technologies will evolve to harness more secure (and programs themselves. costly) alternatives like retinal identification. Soon, But in the United States, electronic monitoring urine for drug tests will be collected in much the has not yet come into its own. The same problem that same way (Jones, 2014). Imagine sensors implanted plagued the English criminal justice system during in drivers' licenses or in tandem with millions of the age of transportation continues to plague criminal micro CCTV cameras attached to cars, buildings, and justice agencies, at least in the United States. telephone poles, all automatically forwarding Creating new forms of punishment often shifts costs information to centralized monitoring and assessment from one level of government or one institution to stations (Jones, 2014). It may sound overwhelming, another, and in so doing, generates resistance. In but not when one considers what other electronic 18th century England, the national government monitoring programs are doing. For example, promoted transportation, but local governments electronic data mining programs developed for the resisted because they were expected to absorb some post-9111 war on terror sort through billions of bits of of the administrative costs. Today in the United data from across huge arrays of networks and sources States, electronic monitoring as an alternative to almost instantaneously. Simple GPS monitoring imprisonment may shift costs from the state (which devices seem primitive compared to these devices. runs prisons) to probation (which is typically NYU Professor Mark Kleiman, with colleagues financed by counties), garnering unsurpnsmg Hawken and Halperin (2015), has hailed electronic resistance from counties. Each level of government monitoring as the greatest innovation in corrections wants the other to absorb the costs. Similarly, a since the development of the prison. Now it is sheriff running a jail might want electronic possible, he maintains, to have virtual prisons in monitoring as a way of reducing crowding, but this which offenders are tethered to an electronic chain means increased costs for probation. As we will see, while in the community and at only a tiny fraction of this is less of a problem in contemporary England and

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in continental Europe at large, where almost all mushroomed. Indeed, since the 1980s, probation criminal justice expenditures are financed by the population in the United States has probably grown at central government (Nellis, Beyens, & Kaminski, an even faster rate than imprisonment, yet budgets 2012) and where there is comprehensive national have not expanded proportionately (Phelps, 2013; planning. Reitz, 2016; Robinson, 2016). Since around 2010 in Apart from the misalignment of costs, there are the United States, this has accelerated. We have seen still other factors that impede the expansion of increased support for less punitive sentences and less electronic monitoring. For instance, probation and reliance on incarceration, but this shift in sentiment parole are anchored in the helping professions. has not (yet) been accompanied by significant Because their professional norms emphasize the increases in funding for probation and parole, except importance of one-on-one contact with clients, in a few isolated instances. So, the problems facing technological incursions are deeply resented probation have been exacerbated. (Garland, 1985; Nellis, 2012). Additionally, This longstanding problem set the scene for the probation departments as institutions are not rise of electronic monitoring. In the 1980s in the primarily concerned with expanding alternatives to United States, when vendors came calling on imprisonment because such expansions would invite probation to sell or lease their equipment, they more work, nor do they want to risk the increase in confronted a reluctant consumer who lacked the will Willy Horton-like problems. (Horton was an inmate and the capacity to respond. Indeed, many in these in a Massachusetts prison who was released on a agencies were so hard-pressed that to them short-term furlough and subsequently committed a innovation might have been understood as replacing a murder. It occurred during Michael Dukakis's term dot matrix printer with a laser printer or equipping as governor and was successfully used against him by their field agents with cell phones. Under the best of George H.W. Bush, his opponent in the 1988 circumstances, these agencies were resistant to presidential election campaign.) As it is, probation change, but under the onslaught of vast increases in departments are already swamped with impossibly caseloads and shrinking budgets, they were virtually high caseloads and enough risky choices. They are comatose. They did not understand high-tech desperate to keep up with simple tasks, such as equipment. They resented intrusion into their collecting urine samples for drug testing, leaving traditional ways of doing business. They were them little patience for anything that does not relieve demoralized. They are now, perhaps, the weakest crushing caseloads. By the time electronic link in an already weak system of criminal justice. monitoring came onto the scene, most probation Perhaps most importantly, though, local officers did little more than passively supervise their probation departments had little interest in embracing massive caseloads. Indeed, one study of English a reform that would lighten the workload of state probation officers reported that nationwide, officers corrections or county jails by shifting additional spend 75% of their time filling out forms (Nellis, offenders to probation. To take one example, in the 2014b). American probation officers are probably early 1990s, my friend Dick Rainey, sheriff of Contra not far behind. Costa County, was keen on keeping the population of Furthermore, reality has overwhelmed the the county jail down. He wanted to avoid a crowding mission of probation. Offenders are less tractable lawsuit, but above all, he wanted to run an exemplary than most theories of rehabilitation admit to, and jail. Therefore, when he learned about electronic communities into which offenders were to be monitoring, he approached Contra Costa County reintegrated have disintegrated. In the 1970s, these Probation with a proposal: Both he and the probation hard facts contributed to the decline of the department could agree that there were many inmates rehabilitative ideal, and this decline was aided by the who were neither dangerous nor posed risks to the steady drumbeat of those who rejected the idea of community and, thus, did not need to be in jail. He treatment and embraced increased reliance on proposed that both his department and probation retributive punishment, such as prison. All this has approach the county judges to seek support for a plan further undermined the raison d'etre of probation and to send more offenders to probation with electronic parole and helped to transform former social workers monitoring and fewer offenders to his jail. He was into a demoralized corps of quasi-law enforcement certain that local judges would agree to the officers. Federal parole and parole agencies in some experiment if both he and the head of probation states were abolished outright when new laws jointly proposed the idea, but it never got that far; mandating determinate sentencing, guidelines, and rather, probation turned him down outright, citing truth in sentencing laws were enacted. Where parole electronic monitoring's purported incompatibility has not been eliminated outright, its budgets, like with the helping professions and the certain increase those of probation, have not kept pace as caseloads in their caseload. Above all, probation officials

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wanted to avoid a Willy Horton-like scandal. justice administration have become increasingly Frustrated, but still undaunted, Sheriff Rainey attractive to public officials (Aviram, 2015). realized that he already had the unilateral authority to Electronic monitoring contractors have made use electronic monitoring within his department's some inroads with their new approach, and in the home confinement program and started a program United States, there has been a painfully slow but that continues to operate some 25 years and two steady increase in the use of electronic monitoring sheriffs later. As far as I know, this is the only since the late 1990s. But the market is decentralized. electronic monitoring program in the United States Authority is fragmented across levels of government completely run by a sheriff and the only program in and among different agencies. There is no national which there is certainty that 100% of the participants ministry of justice, and only a few states have strong serve a sentence that is truly an alternative to jail. statewide oversight and planning functions in Probation's reaction to the sheriff's proposal criminal justice. Responsibility and functions are reveals a widespread attitude. Despite being part of divided among state, cities, and counties. Private the helping professions, overwhelmed probation firms have faced enormous obstacles in even getting officials would only increase their own caseloads if attention under such circumstances. If they are able to they accommodated jail-bound offenders. More obtain a contract, it is likely to be local and thus generally, as with all types of community corrections relatively small. programs, local officials resent state efforts to shift But if they can find the right customer in this state-borne burdens onto counties. In a highly hyper-fragmented market, contractors have an decentralized system, such as the United States, such impressive product and a powerful sales pitch. The resistance is both powerful and effective. This voices of those promoting the myriad of electronic contrasts with England and Wales, which, because of wares in this new industry are amplified by the its strong and centralized national government, could expanding library of writings by academics, criminal establish a new privately operated electronic justice practitioners, and industry representatives monitoring system and all but abolish traditional promoting electronic monitoring as an efficient and probation. effective alternative to incarceration. One consequence of these differences is that These entrepreneurs also aggressively market electronic monitoring is far less developed in the their product with a multiplicity of arguments. They United States than in England. Despite the fact that promise efficient devices that can better incapacitate, in the United States, four to five million people are deter, punish, treat, and rehabilitate all at the same on probation and another two million people are in time. They can be tailored for specific offenders and jails or prisons at any given moment (Robinson, for unique circumstances. Moreover, unlike 2016), only a tiny fraction of them are hooked up to supervision by probation officers, electronic monitors electronic monitors, and of those, only a miniscule with GPS work around the clock. Electronic number are in programs that are real alternatives to monitoring is all things to all people: a meaningful custody. There is a vast market, but as of yet, it has punishment, deterrent, rehabilitation technique, and not been tapped to any significant extent. solution to crowding, all at a fraction of the cost. Go Recognizing this potential, private contractors to a criminal justice agency convention, or simply have not given up. They have regrouped, altered Google "electronic monitoring," and you will find their marketing model, and continue to promote their this expansive array of claims. The central appeal of products. They have mounted a two-pronged attack, electronic monitoring is cost and efficiency. As and at some point, they will undoubtedly find more previously noted, it costs $35,000 to $50,000 per year success. At the outset, they offered to sell or lease to keep someone in prison but only $1,500 to $3,000 equipment to probation departments. Under revised to electronically monitor someone in the community. plans, they propose to operate the equipment This is an eye-popping claim certain to get the themselves-to install it, to maintain it, to monitor attention of elected officials and is supported by offenders, to notify officials when they detected ample evidence indicating that these cost estimates violations, and, at times, to run the treatment are correct. programs. Increasingly, they have gone over the When one looks closely at the sorts of promises heads of probation officials to pitch their ideas these companies offer, however, there is something directly to county boards of supervisors and state of a bait and switch going on: They emphasize the legislators with the goal of selling cost-conscious contrast between the cost of imprisonment and the elected officials on the economies of electronic cost of electronic monitoring (one-tenth the cost!), monitoring, which provides secure confinement and but the programs they actually promote are not likely surveillance at only a fraction of the cost of jail. In to be alternatives at all. Rather, they are designed for the 2000s, cost efficiency arguments in criminal the big pool of easier targets, such as pretrial release,

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drug treatment, DUI treatment, probation, and parole, program run by private contractors. This situations in which it is unlikely that those being development has been closely watched by a host of monitored would otherwise go to jail. Put bluntly, people: vendors, program administrators, union then, electronic monitoring is sold as a miracle drug officials, affected probation officials, government for cost savings but almost invariably increases the bureaucrats, politicians, and scholars. By now, there cost of managing offenders. So, while they may exists a vast literature on the electronic monitoring appear to produce enormous cost savings, such and the role of private contractors in administering monitoring programs are, in fact, unlikely to reduce the program. At the outset, in England, cost­ the expenses of incarceration, and they are likely to conscious MPs and others who keenly embraced the add to the costs of criminal justice administration. privatization regime of Ms. Thatcher developed close This is a bold claim, so let's look at the evidence ties to military contractors and with them developed on which it is based. One caveat exists at the outset, plans for transforming the country's prison and though. In the United States, it is dangerous to probation services. These efforts have been wildly generalize about programs, their reception, their successful. At least one junior minister in the costs, and their impact. Indeed, most of the relevant Conservative Government in the mid-1980s, John agencies are organized at the county level. There are Patten, made a name for himself by helping to form over 3,100 counties in the United States, and most of the Offender's Tag Association, successfully them have separate courts, prosecutors' offices, championing the nation's first electronic monitoring sheriffs' departments, and probation agencies. Some program and justifying it as a way to simultaneously of them have distinct pretrial release systems and reduce the prison population, save money, and various shared city-county programs. In addition, increase public security (Paterson, 2007b; Zedner, there are 50-plus statewide correctional systems and 2006). Labour's victory in the 1997 election made no parole departments; some of them are highly difference. The private electronic monitoring grew centralized, and others are decentralized in the apace under its rule and has continued under still extreme. In all of this, there is no national ministry other governments since. It is here to stay for the of justice, or even a meaningful state department of indefinite future. So, it provides an excellent case justice, and this level of fragmentation and study for the uses of electronic monitoring. decentralization renders state and nationwide data There is no comparable body of work in the particularly hard, if not impossible, to come by, and United States because there has been no comparable no Research and Development functions operate to development. Nevertheless, Florida's experience speak of (Feeley, 1983/2013). Although a number of comes the closest. Florida is one of the few states in local police departments and some national police which a statewide agency, the Florida Department of organizations have embraced innovations and Corrections, has substantial responsibilities for both experimental testing, few other criminal justice state prisons, probation, and parole. So when institutions have been willing to do so (Weisburd, corrections leaders were forced to confront the state's Sherman, & Petrosino, 1990). Furthermore, even burgeoning prison population, they seized upon the when there are experiments with electronic idea of electronic monitoring and drew up plans to monitoring, and across the United States there are direct some prison-bound offenders into programs hundreds of small locally run programs, trying to requiring home confinement and electronic gather information and make sense of them is next to monitoring. Unlike corrections officials in other impossible. They are set up by true believers; states, they had the authority to effect their plans. investing in them is a sunk cost, there is little The Department not only contracted with one of the oversight (although national agencies often provide state's many firms involved in military security, bank temporary funding for "pilot" programs), and so there security, and corrections industry, it also contracted is little systematic evaluation. As a result, there is a with researchers at the College of Criminology at pronounced lack of knowledge about electronic Florida State University to monitor its activities and monitoring programs (Renzema, 2003). evaluate its programs. Given this, how can I be confident in my There have been no definitive assessments of assertion that electronic monitoring programs are not England and Florida's grand experiments. Both (yet) meaningful alternatives to incarceration? enterprises are too messy and multifaceted even to Assessing accounts of two projects that have been hope for this. Nor in either case has even any smaller watched closely, one in England and the other in component program been carefully evaluated in ways Florida, helps answer this question. that meet conventional standards for evaluation In England, a series of successive Governments research (Taylor & Ariel, 2012). Yet, programs in have embraced the idea of electronic monitoring, and both locations have generated small libraries of adopted and implemented a sweeping national research and commentary, that when pieced together,

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allow us to gain a picture of how they operate, who As in the United States, probation in England is operates them, whom they target, and what impact probably the weakest link in the criminal justice they have had. Below I review some of this diffuse system, an organization which recites the stirring literature. phrases of the era of treatment and rehabilitation, but Consistent with the theme of this article, I have which is, in fact, an institution on life-support, unable two objectives in the discussion below. First, I want either to articulate or pursue its mission. As to examine the role private vendors have played in mentioned earlier, according to some credible the design, promotion, and administration of reports, probation officers spend up to 75% of their electronic monitoring programs, and then I want to time doing paperwork in their offices, leaving determine the extent to which electronic monitoring precious little time to meet with clients in ways that is, in fact, an alternative to incarceration. help them reintegrate into their communities (Nellis, 2013). Eventually the Government achieved a decisive In England, the government's embrace of victory over the NPS, and, in effect, created an electronic monitoring for people on probation came entirely new, commercially-operated and after a decade of successful experience with electronically-sophisticated probation service. The privatizing the delivery of a host of public services, changes in criminal justice services as exemplified by including prison administration. Turning to private changes in probation and electronic monitoring are contractors to implement a new and promising massive, far surpassing any of the similar technology for probation was part of a natural developments that have taken place in the United progression. The decision, however, created an even States. A new Ministry of Justice was created to greater controversy than did the earlier decision to oversee the administration of the new commercially establish a handful of private prisons. Electronic operated prisons and probation, as well as other monitoring was presented as an efficient and more functions hived off to the private sector. The Home effective way to monitor offenders. There was little Office is left to oversee the police and to share rhetoric justifying it in terms of treatment or responsibilities with new commercial law rehabilitation (Blunkett, 2004), but the new policy enforcement organizations, which operate remote was promoted as a means of cutting into the growing CCTV surveillance, traffic cameras, and the like. prison population and providing a more effective and The size of the contracts for electronic monitoring less costly alternative. and other privatized services is enormous, even by Not surprisingly, the new policy was perceived American standards. As of this writing, the NPS is as a slap in the face by members of the National an empty shell of what it once was. In short order, Probation Service, steeped as they were in a nearly voluntary transfers, resignations, and retirement will 100-year history of the rehabilitative ideal. As Mike cause it to all but disappear. Only a tiny handful of Nellis, England's leading authority on electronic traditional probation officers will be retained to monitoring and the National Probation Service manage a small group of the highest risk (NPS), has observed, probationers. The new commercial criminal justice institutions Probation's aversion to EM unfortunately have radically transformed and continue to radically played into the government's emerging transform the nature of criminal justice functions in ideological interest in contracting-out public England as they have been understood and operated services (including prisons) such that when for over the past 100 years. The transformation is as EM-curfews were finally piloted locally in thorough-going and dramatic as the changes David 1989/90, regionally in 1996/99, and then Garland (1985) described in Punishment and main-streamed nationwide in 1999 [under a Welfare, his book about changes in Edwardian New Labour Government], they were England, when the modem helping professions were outsourced to commercial organizations. created and institutionalized. Contracts worth (Nellis, 2014a, p. 4) hundreds of millions of pounds per year have been let, and the plan is both to continue to expand this Probation's opposition to electronic monitoring was "public-private partnership in crime control" and to so great that officials refused to cooperate with the contract out indefinitely. Revised or new small and Home Office to help develop and implement it. In streamlined public agencies of all sorts have been this way, the NPS, in effect, signed its own death established, not to provide services to clients, but to warrant. The Government circumvented it, a course fashion, let, and oversee contracts for the private of action that some believe the Government had delivery of public services. These new bureaucrats expected to employ all along (Nellis, 2014a). are expected to manage the "business of government"

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(Police Reform Act, 2002; Private Security Industry This, as Nellis (2014b) points out, "was an explicit Act, 2001; see also Dodgson et al., 2001; Enos, departure from earlier 'somewhat fudged' Black, Quinn, & Holman, 1992). commitments to use EM as an alternative to custody" With respect to the new electronic probation (p. 17). So, by the government's own functions, a set of obvious candidates for the acknowledgment, electronic monitoring by the new lucrative contracts were quick off the mark: "community rehabilitation companies" consists of companies with prior experience in building and add-on conditions for those who would be released operating private prisons, companies with records of on probation and pretrial release anyway. success in providing surveillance and security for These new community rehabilitation companies banks and military institutions, companies involved have still other products under development. For in various forms of private policing, and newly those not attached to electronic tags, they plan to established partnerships among some of these install kiosks in convenient locations so that clients companies. The contracts were large enough to scare can check in as easily as they can use an ATM. off all but the largest and most heavily capitalized Similarly, they plan to maintain conveniently located companies with impressive track records. Bids for stalls to collect urine for drug tests. Such programs electronic monitoring and related contacts began to are activated by fingerprint, voice, and retinal be let in the late 1980s and expanded throughout the recognitions software. Still other plans in the works 1990s. A handful of companies competed for them, include skin-sensitive electronic tags that can and over the course of a few years, and after some determine alcohol and drug use (already operational) consolidation and failures, the field was narrowed to and devices that can register levels of frustration and two companies that now divide most of the business aggression and then perhaps electronically return between themselves. In contract renewals in 2005, palliative responses. In a society shaped by a the Home Office awarded contracts to these two philosophy of limited government, the function of firms, G4S 5 and Serco. In 2009, the Labour private rehabilitation companies is not to offer Government renewed and extended these two counseling, aid, or advice, let alone treatment and contracts, and in 2015, the returning Conservative rehabilitation. It is to enhance surveillance and Government extended them once again (Nellis, enforcement in a high-risk population in order to 2014b). An upstart company has gained a foothold in promote social security. One wonders when private the business and may be able to expand its operations insurance companies will begin to adopt some of the (Nellis, 2014b). The resounding victory of the same techniques for drivers, renters, and home Conservative Party in the 2015 elections all but owners. Employers have already embraced some of assures that longstanding plans will be affected and these devices to great effect. that private community rehabilitation companies Florida using cutting edge electronic technology will be fully operational and institutionalized. If there ever will be The United States is highly fragmented and a return to traditional institutions, it will not be in the decentralized; there is no equivalent national, or even foreseeable future. The course for England in this state-wide, push as we have seen in England and area seems to be set at least for the next 100 years. Wales. Furthermore, there is no equivalent of the The struggle to privatize and institutionalize Home Office or the new Ministry of Justice that can electronic monitoring led to a shift in expectations for shape policy and monitor oversight of criminal its functionality. Privately-run electronic monitoring justice agencies-none at the national, state, or even and related programs were initially promoted by a local level. So, electronics-based reforms in the cost-conscious Conservative Government as a more United States have been slow and on a much smaller effective and less expensive alternative to scale in the United States than England. Most imprisonment. But the rationale for them has subtly changes have been small efforts and involved only shifted over the years. The law and order logic of one county-based agency at a time. social conservatism trumped the efficiency arguments There are, however, exceptions. One of them is of fiscal conservatism, and this was helped along by a the Florida Department of Corrections, which is one handful of widely publicized crimes by offenders of the few corrections departments in the United who were under home detention and electronic States that not only manages corrections but is also supervision. This shift in purpose was made explicit mandated to develop policies addressing sentencing, in 2010 when the new coalition Government parole, and probation. It is also an agency with a reiterated a continuing commitment to electronic long history of innovation, experimentation, reform, monitoring but added that "we do not want to see and experience with privatization of prisons. The community sentences [i.e. electronic monitoring] Department, which administers the third largest replace custodial sentences" (Nellis, 2014b, p. 17). correctional system in the United States, is the first

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(and, as of this writing, the only) large agency in any company detects violations, it is to call the state to embrace electronic monitoring with appropriate state or county agency, which then takes enthusiasm. So, in the 1980s-well before the big over. Of course, there have been glitches, but over push in England-when the state faced a rapidly time, both technology and management have growing prison population, representatives for improved, and the problems have been reduced to electronic monitoring companies (many of which nuisance level. This general account is provided in a were spin-offs from commercial private prison number of documents produced by the Department of companies) offered a solution: expanded use of Corrections and various evaluation reports by the electronic monitoring to reduce the prison population. FSU team. The single most extensive report is that of Reductions could be affected in two ways: Intensive Bales and colleagues (2010). supervision would reduce recidivism, and thus re­ Florida's experience with electronic monitoring incarceration, and some low-risk nonviolent is probably something of a best case scenario. As offenders could be diverted directly to electronic compared to most other states, the Florida monitoring. Department of Corrections is innovative. After discussion with key state legislators, Furthermore, it has a unique state-wide authority over members of the judiciary, and researchers at the state probation and parole, as well as some sentencing­ university, the Department of Corrections embraced related decisions, and maintains a good reputation electronic monitoring in a big but cautious way. within the state and a high degree of confidence Indeed, offenders in Florida's electronic monitoring among state-elected officials. It also has ample programs probably account for a sizable proportion experience working with private prisons and private of all those in such programs throughout the United contractors. Perhaps most importantly, officials in States. The program was a new experiment. the Florida Department of Corrections were Contractors would provide the electronic equipment, committed to using electronic monitoring to help install and maintain it, monitor offenders, and notify alleviate crowding in their prisons and embraced officials when violations occurred or equipment electronic monitoring, in part, because of this. failed. Tighter supervision, it was expected, would Finally, the Department has a long history of working lower rates of recidivism and absconding, problems closely with experienced researchers from the that plague all probation and parole programs. College of Criminology at Florida State University, Furthermore, state officials professed support for which it expected would evaluate its efforts. To date, including more serious offenders in ways that would that collaboration has produced a library of research reduce, if even marginally, the state's burgeoning jail reports on the new program. and prison populations. The state's plan eventually called for an After some jockeying, the first contracts were let ambitious electronic monitoring program for the in 1987. Eventually, the bulk of the business went to seven distinct types of offenders: 1) a group of 3-M, Minnesota Mining and Manufacturing, a standard probationers; 2) drug offenders on manufacturing company that branched out into high­ probation; 3) sex offenders on probation; 4) those in tech security services years earlier and has long been special community control prison diversion programs well-established in the Florida market. Since 1987, it for probationers with histories of violating less­ has provided electronic monitoring services for most stringent conditions of community release; 5) of the offenders in these new electronic monitoring parolees on conditional release (serious offenders programs. By all accounts, the initial bidding process who have served most of their long terms and have was competitive and above-board, and the quality of been released due to earned good time; 6) straight service has been satisfactory. Program conditions paroles (a dwindling group of older offenders who vary by type of client and program and as a result of were sentenced before the state adopted sentencing trial and error and adjustment over time. Typically, guidelines and abolished parole); and 7) recovering 3-M personnel accompany corrections and probation addicts, that is, offenders who have served their time officers who meet with program participants at their but have long histories of substance abuse (Bales et homes, where they attach monitors and set up al., 2010). transmitters. Once up and running, the company then The central question for the Department and its monitors clients according to the conditions specified researchers remains: Does electronic monitoring in the contracts. For instance, they may randomly reduce recidivism and absconding in comparison check to make sure that a probationer is at home with traditional types of probation supervision? when he is supposed to be, that sex offenders Additionally, is electronic monitoring a meaningful maintain specified distances from parks and schools, alternative to custodial sentences in this new and that people strictly adhere to their work and initiative? Certainly, this huge and multi-faceted home or treatment schedules. If the monitoring program was initially launched to pursue a number of

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objectives: to reduce recidivism and absconding rates capacity of various types of equipment. But on the of those on parole and probation. But one central whole, the capacities of various types of equipment part of it was to reduce overcrowding in the state's and their distinctive impacts have not been carefully prisons and jails. To this end, it was constructed as a scrutinized in Florida or elsewhere.6 However, it is partnership between the State's corrections clear that in Florida, the shift from RF to GPS was department and the State's leading criminal justice accompanied by an expansion of conditions placed research organization. on participants and their scrutiny. This change might Researchers at Florida State University were be described as a shift from monitoring to involved with the project from the beginning. They surveillance. helped design the different programs, specify criteria What effects did these programs have? Were for selecting participants, and then compiled participants cooperative? Did recidivism and, thus, databases to facilitate meaningful comparisons and return to custody decrease? Did absconding evaluation. Beginning in the late 1980s, as soon as decrease? Were the programs alternatives to jail and the programs were underway, they began collecting prisons, and if so, to what extent? Or were they add­ data and shortly thereafter began issuing periodic ons? In one of their interim reports, the team of lead progress reports. Without a doubt, Florida's researchers from FSU drew four robust conclusions experiments with electronic monitoring are the most about the program: l) Electronic monitoring evaluated electronic monitoring programs in the contributed to modest reductions in reoffending and country. A massive final report by this team was absconding; 2) Electronic monitoring "works for produced in 2010 (see Bales et al., 2010), but various serious offenders"-this is a significant finding since members of the team also produced a number of other electronic monitoring programs enroll less interim studies and detailed assessments of particular serious offenders; 3) Most offenders in two of the projects within the program (see Gainey, Payne, & three largest target groups (recall, the program was O'Toole, 2000; Padgett, Bales, & Blomberg, 2006; divided into seven different clusters) would have Vollum & Hale, 2002). State Corrections itself been in prison but for electronic monitoring and produced still more accounts of the program. home confinement: a) those convicted of violent Most of these studies point to the same findings. crimes, and b) those convicted of property offenses, Corrections did a relatively good job dipping into but c) a third group, almost all drug offenders placed risky categories of offenders to place on electronic on home confinement with electronic monitoring, monitoring, and 3-M, the private provider working probably would not have received prison time in the with Corrections, did a good job fulfilling its absence of the program-so net-widening; and 4) promises and executing its responsibility. The Sex-offenders who were placed on electronic programs all got off the ground and enrolled monitoring after serving their mandatory sentences substantial numbers of participants, and when found, had especially low rates of recidivism and kinks in program administration and monitoring were absconding (Padgett et al., 2006, pp. 82-86). ironed out. When they began operations in the late At first glance, this summary of findings is 1980s, the programs used RF units, which monitored impressive. Electronic monitoring programs can be offenders through telephone lines. Almost administered effectively and efficiently by immediately, however, the Department began commercial organizations, and they may have some switching over to more flexible and also more modest impact on reducing recidivism and expensive Global Positioning Systems (GPS) which absconding, and this, in turn, reduces incarceration can track people's movement via satellite because fewer people are returned to custody for communications. By the early 2010s, RF units were violations. Furthermore, for two of three important all but phased out in favor or GPS units. groups, violent offenders and property offenders but The shift raises more issues than just cost. GPS not drug offenders, electronic monitoring appears to units promise a much greater capacity to track and be a genuine alternative to imprisonment, at least for monitor people as compared with RF units. The latter some portion of the participants in these categories. can track the movement of people around the clock At first blush, not bad. and have the capacity to locate them within a few feet But let's take a closer look at all seven groups to of their actual location. RF units can let remote see how many monitored offenders were directed to a monitors know if a particular person is or is not at a real alternative to custody. Four of the seven groups particular location at a particular time. Thus, the mandated electronic monitoring as an add-on, some latter only permit limited monitoring while the by new laws that had been adopted expressing for former allow round-the-clock monitoring. this purpose: (l) Ex-offenders were subject to These issues are discussed from time to time in electronic monitoring only after they had completed reports of monitoring projects and descriptions of the the full sentence under new harsher laws, (2) Serious

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offenders who completed their prescribed maximum that their impact on the size of the custodial sentence and who had to be released were monitored population is negligible. during the short period of earned good-time after This review alerts us to two other important release, (3) Older offenders who had served their full developments that have not been subject to much sentences under older sentencing laws (the laws discussion in the electronic monitoring program in changed in 1983) that included follow-up parole had Florida or elsewhere. First, as noted above, it electronic monitoring tacked onto their parole appears that after the electronic monitoring program conditions, and ( 4) Offenders with histories of in Florida was underway, the state legislature enacted serious substance abuse who had served their full new laws that built electronic monitoring into sentence and had to be released were subject to sentencing in ways that had not been part of the electronic monitoring. So, by the time the program original plan. Sex offenders were made subject to was up and running, participants selected for four of new indefinite electronic monitoring after they have the seven types of programs were offenders who had served the maximum possible of their lengthy prison served their full terms in prison. In other words, terms. Serious offenders who have served lengthy electronic monitoring was an add-on, not an maximum sentences are now tracked during the alternative. In some instances, new laws were enacted limited "good time" release portion of their to accommodate this, perhaps over the objections of sentences. And offenders with histories of drug the advocates of electronic monitoring. abuse are now monitored, however minor their This leaves three other groups. How did they current possession offense is. These are all add-on fare with electronic monitoring? One of the penalties that were adopted after plans for the remaining three groups consisted of those convicted program had been completed. As such, they of drug offenses (almost all for possession). undermine one of its central objectives: to search for According to the FSU researchers, most would not alternatives to custodial sentences. This is much the have been sentenced to jail or prison had they been same thing that occurred in England. There, too, the sentenced before the outset of the electronic Government revised its understanding of the purpose monitoring option. So, for five of the seven groups, for electronic monitoring and in the process, turned it electronic monitoring appears to have been an add-on into an add-on rather than an alternative. almost from the outset. Of course, the programs did Second, the Florida program, like the program in have some impact in lowering recidivism and England and in other locations, adapted to rapidly absconding rates, which indirectly had some impact changing technology and in so doing, altered the aims on the reduction of jail and prison populations. of the program, perhaps without even realizing it. At The final two groups involve those in the outset, the objective of most components of the community control (prison diversion programs) program was to monitor offenders to determine if whose offenses were not so serious as to warrant jail they were complying with the restrictions of home but who, nevertheless, had difficulties complying confinement. However, as satellite and GPS replaced with standard conditions of probation and a group of RF devices, 24 hour surveillance came to replace standard probationers. What would have happened to periodic radio frequency monitoring. So even if the those in these two groups in the absence of electronic theory of who should be monitored and why monitoring? The FSU researchers reported that a remained the same, the ready availability of more and substantial number of them might have been in jail or continuous information has altered the objectives of prison absent electronic monitoring. Perhaps success the program (Carney, 2012; Nellis, 2013; Paterson, in two out of seven categories is not so bad. 2007b). As of this writing, the consequences of these However, when we look at the numbers within each quantum jumps in technology for privacy and of the seven groups in the monitoring program, we surveillance are still in their infancy (see, e.g., Jones, see that the single biggest group by far consists of 2014). those convicted of possessing small amounts of The best that can be said of the Florida drugs, an offense least likely to result in a jail or programs is that some of them keep some people out prison term in the absence of electronic monitoring. of jail and prison, but not many. For most, electronic Indeed, the numbers of participants in this group are monitoring is an additional sanction, an add-on to so large that they almost swamp those in all the other conditions of release, or an add-on when offenders groups combined (Bales et al., 2010). have completed the maximum terms allowed under Furthermore, these two groups most likely to law. Moreover, as suggested above, under new have diverted participants from jail or prison are Florida laws, there is no way that these programs can among those with the fewest numbers of offenders. be alternatives since they are required to be tacked on So, while they appear to have produced a genuine after a maximum allowable sentence has been served. alternative to incarceration, the numbers are so small This picture of Florida is mixed but hardly

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encouraging. It shows that electronic monitoring is used to enhance conditions of probation, parole, or can be an alternative to prison, but, in fact, this pretrial diversion, and pretrial release, and only rarely occurs. The claims that electronic monitoring occasionally as an alternative to custody. Still, it is produce huge savings because it costs only 10% of clear that it can work as an alternative. Recall Sheriff the cost of housing an offender in prison is attractive Rainey's self-initiated program in Contra Costa, and has powerful appeal. But it is misleading. In California that has now been operating since the Florida, very few people tagged with electronic 1990s. monitors would, in fact, have gone to prison. So, we As of now, the most important promise of this have privatization, but we also have both increased innovation is its potential to enhance and expand cost and expanded public social control. control and surveillance of those who are not likely to Of course, this is a limited conclusion, drawn be prison bound. The uses of electronic monitoring from the results of an electronic monitoring program and its allied functions are limitless. We are on a in only one state. As I pointed out above, however, new frontier that has yet to be mapped, and the Florida is something of a best case. Its Department of boundaries of that frontier will grow by leaps and Corrections was committed to taking risks and to bounds and include applications we cannot yet even experimentation and, indeed, did so. Still, its imagine. We can get a sense of this from reviewing programs have had only limited effect in cutting into some ideas that are by now well-developed by prison-bound populations. Reports on other companies anxious to expand more deeply into the programs are even less sanguine. In the 1990s, the criminal justice market. Some of these ideas have Campbell Consortium commissioned an assessment already been put into operation in a few places. In of evaluations of a number of electronic monitoring the not too distant future, I suspect, many of them programs, including the Florida program, and its will be familiar and standard practices. The list principal reporter, Mark Renzema, by himself and below is just the tip of the proverbial iceberg. Note with various colleagues, has produced a steady that none of these new ideas target prison-bound stream of illuminating reports (Renzema, 1992, 2003; offenders. If adopted, all such privately run Renzema & Mayo-Wilson, 2005; Renzema & programs will have the consequence of expanding, Skelton, 1990). They found what others engaged in not contracting, public social control. In addition, meta-analysis of evaluation research in criminal they will further blur the distinctions between the justice typically find: programs vary widely in scope criminal and civil process, juvenile and adult justice, and targets; most published studies do little more the school and the jail, and insurance companies and than describe program operations; and most law enforcement. They will also add, not decrease, evaluations are so primitive that it is difficult, if not the costs of operating our criminal justice system. impossible, to draw conclusions about their validity Drug Possession. Electronic monitoring is and reliability. For instance, Renzema (1992) found likely to expand for those convicted of drug that "[only] five experiments [out of 150 project possession and replace what otherwise might have evaluations he reviewed] were attempted using been unconditional probation or probation and drug random assignment, [and] only two resulted in treatment. The emphasis will be on drug testing interpretable studies" (p. 12).7 Turning to the best of through remote electronic monitoring devices. this work and piecing together insights as best he Sex Offenders. It is increasingly popular to could from partial and inadequate studies of impose indefinite periods of electronic monitoring as programs in a number of American states, Renzema an additional condition of parole for sex offenders. (1992), nevertheless, concluded that if electronic This has already reached its saturation point, but the monitoring has any effect at all in reducing policy can easily be expanded to other types of recidivism, or any impact in diverting offenders from offenders (Lave, 2011; Leon, 20 14; Leon, Burton, & prison or jail, it is "probably not much" (pp. 12-13). Alvare, 2011). Pretrial Services Agencies. Since they were lmplica1tim1s of Electronic Mcmit:ori first established, pretrial service agencies have The combination of the plummeting crime rate championed supervised release as a condition for over the past three decades, but only modest declines release (Feeley, 1982, 2014), and now they are in imprisonment rates and an increase in cost­ enthusiastically adding electronic monitoring to their conscious public officials, have probably increased repertoire. Coupled with a new-found enthusiasm for interest in electronic monitoring. It is not clear, actual prediction models, electronic monitoring however, that this translates into expanded use of should take off. electronic monitoring as an alternative to custody. If School Truancy. One innovative way to combat anything, the evidence reviewed above suggests just chronic truancy is to attach electronic tethers to the opposite: Electronic monitoring is almost always problem students.

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Gangs. Gangs and hot spots pose a major there was little likelihood that custody would have problem for law enforcement. Attaching electronic been imposed in their absence. It is clear, however, monitors to gang members, even just a few of them, that electronic monitoring is used, in Blomberg's should allow officials not only to track those (2003) terms, as part of the "piling up of sanctions" individuals but also to identify hot spots where gang (p. 424) and only incidentally as an alternative to members gather. custody. This development was almost predictable Restraining Orders. Electronic monitoring can from the outset (Blomberg, 2003). Merchant be of enormous use in enforcing restraining orders of entrepreneurs promoted it as if it were a miracle pill: all sorts. It could monitor, detain, be used to impose Alcohol and Drug Monitoring. Electronic retribution, be used for treatment, and the like, and all devices attached to the body can now monitor drug at a tiny fraction of the cost of custody. Not and alcohol intake and soon should be able to surprisingly, it caught the attention of cost-conscious monitor physiological indicators of anger, so it is officials. Once they were hooked, however, risk­ possible that insurance companies as well as law aversion set in, and electronic monitors were diverted enforcement may insist upon them for some people. to be used on softer, lower-risk, and more plentiful Immigration and Naturalization. Electronic targets. Certainly, it is another feature of our Alice in monitoring might be used to track low-risk people in Wonderland-like criminal justice system. Yet, as my trouble with the ICE, who previously would simply discussion has shown, this pattern and practice were have been subject to a summons. They might be neither unforeseeable nor unforeseen. Florida's own placed on wives and children of men who are in experiment with electronic monitoring quickly came trouble with the ICE, as well as low-level terrorist to be constrained by new sentencing laws that suspects. precluded its use to cut into prison-bound groups. INS and Terrorist Lists. Persons of interest England's great alternative to expensive prisons was who may be required to appear at hearings for civil transformed into an expansive new electronic and immigration purposes may be subject to probation. By now, piling up sanctions can no longer electronic tags. be seen as the unintended consequences of a good Monitoring for Those in Custody. Electronic reform gone awry. It must be seen as the foreseeable monitoring can also be used to keep tabs on people and perhaps foreseen reaction to risk-averse officials already in custody, such as open facilities, half-way on the one hand and successful entrepreneurs' desires houses, and even secure institutions. It may have a to pluck low hanging fruit on the other. huge potential for both adults and juveniles housed in To get an idea of just how energetic support for low-security community corrections facilities. this high-tech world of the new criminal justice is, Traffic Cameras and Near-Automatic one need only attend meetings of professional Conviction. Traffic light cameras are spreading like associations of prosecutors, police, probation, pretrial wildfire because they are installed on public property services agencies, or corrections officers, or for that at no cost to government, reap windfalls for matter associations of county supervisors, state contractors and government alike, and promote safer legislators, and judges. Or, one could read the ads in driving. publications for the various professional associations Other Possibilities. Bioinformatic technology of these groups or the slick documents produced by can be used for facial recognition and retinal vendors. One will be overwhelmed by the number of identification and if installed widely, can provide vendors and the variety of products. At conferences, near-instant identification of thousands of people vast lobbies, ballrooms, tents, and parking lots are going about their normal business (Jones, 2014). overflowing with new and improved products that Some of the uses for electronic monitors vendors are happy to demonstrate. In the electronic identified above do not involve criminal law monitoring business, RF devices are now being enforcement but in light of current developments, replaced with passive GPS units, and passive GPS seem plausible enough as extensions of current units are being replaced with interactive units. The practices that might be used by law enforcement, newer, smaller, more efficient and more effective public schools, civil matters, and by other devices can now detect alcohol and drug use; these institutions, such as schools, employers, and will be soon be replaced by units that can monitor insurance companies. and perhaps respond to mounting anger. Operant conditioning technology can easily be built into these An Assessment devices so that recorded feedback messages can be Despite being touted as alternatives to programmed into them to provide warnings to incarceration, most of the electronic monitoring wearers if they are about to violate conditions (for an programs canvassed in this article were used where account of developments in technology, see

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Renzema, 1992). There is a steady move to expand and, at the same time, intensely risk-averse public and deepen surveillance and extend it to ever greater officials. numbers of problematic persons, such as convicted offenders on parole and probation, arrestees out on bail, accused persons in pretrial diversion programs, juvenile delinquents, school truants, suspected This paper has examined two important policies: offenders, those subject to restrammg orders, transportation and its 21st century counterpart, offenders who have served their time and are on life­ electronic monitoring. Both had or are having time parole, people under civil restrictions, aliens transformative effects on the criminal process. In the who are under suspicion, and perhaps to those with 18th century, transportation dramatically increased high-risk scores based on actuarial tables. the state's capacity to punish, and now, electronic Companies providing such services are not only monitoring is reshaping and expanding the state's out in full force at conferences, they do what all capacity to impose social control. Both innovations government contractors do: They develop ties to key were introduced by entrepreneurs, private contractors decision makers, including chairs of key legislative who sensed a market for their products and committees, key officials in mayors' and governors' successfully promoted them. offices, and important figures in the judiciary. They The significance of these developments is under­ also make contributions to election campaigns, take appreciated. In both instances, one strong appeal is officials on junkets, and employ former public that the programs are replacements or alternatives for officials to contact colleagues in their old agencies. harsher and more primitive policies: transportation Throughout all this, vendors continue to tout for capital punishment and electronic monitoring for electronic monitoring as an alternative to custody and imprisonment. Historians of criminal justice have emphasize the huge cost savings-as much or more popularized this alternative explanation for than 90% in savings. Nevertheless, to date they have transportation, and advocates of electronic been most successful designing programs for add­ monitoring are doing much the same for this ons, not alternatives. Cost savings is an illusion, a innovation. Today, contractors themselves, public way to catch the attention of customers, and not a officials, and a great many observers and academics viable proposal-at least for England and the United characterize electronic monitoring as an alternative. States for the foreseeable future. In the United But in both instances, with transportation and States, cautious innovators like Sheriff Rainey, electronic monitoring, the innovations have been whose program I discussed above, are too few and far directed at softer and more tractable targets, those between. who most likely would have been pardoned or Of course, there are frequent charges of conflict whipped in the case of transportation, and those who of interest, favoritism, and corruption, claims familiar would not receive time in jail or prison now. to anyone who knows the literature about the Different reasons account for each policy. The military-industrial and the prison-industrial complex account of transportation has been institutionalized in the post-Cold War era. Certainly, many by Whig historians who have advanced the argument allegations are true. Some officials have gone to jail that transportation was part of the steady and for taking bribes, others have resigned from company inevitable reform of English criminal justice, boards or from public service, while the behavior of although, of course, it was the central objective of the others remains questionable. And contracts have architect of the 1718 Act (Beattie, 1986; Rubin, been voided. But there is nothing to suggest that such 2012). No doubt it is also due in part simply to a problems are any greater or any smaller than careless causal inference from a careless assessment problems found in other areas of government of a sequence of events. contracting, say supplying janitorial services in Vendors of commercial electronic monitoring public schools, garbage collection for municipalities, services do what salespeople always do, emphasize or weapons for the Defense Department (Jacobs, cost savings and dramatic benefits, and try to be all 2006). Indeed, many of the same problems were things to all people. The claims of vast cost savings found in the process of obtaining government are, in fact, true if used as directed. The claim has to contracts to ship convicted felons to Chesapeake Bay. turn heads. But as they go on to talk to about their Opponents of privatization point to such products, they turn to softer targets-less risky practices as reasons not to privatize, but to my mind, offenders-which are likely to have greater appeal to they miss the deeper issue that drives privatization risk-averse officials. Not coincidentally, the less­ and its inability to provide real alternatives: the risky group is far larger than the riskier group. Four entrepreneurial drive that leads to innovation, the and a half million people are on probation and parole appeal of new markets, the attraction of soft targets, in the United States at any given moment, as opposed

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to some tiny portion of the two million people in we cannot yet even imagine. Still other innovations custody who might be realistic candidates for proffered by private entrepreneurs, such as private electronic monitoring (Reitz, 2016). The law of low­ prosecution societies, convict leasing, private prisons, hanging fruit probably goes a long way towards pretrial diversion programs, pretrial service agencies, explaining the seeming inevitability of this dynamic. treatment facilities, fine collection agencies, traffic Sheriff Rainey's program in California is the rare light cameras, and even private courts, have been exception that may prove the rule. sandwiched between them. Indeed, the history of The story of electronic monitoring is, however, innovation in the criminal justice system is in large quite different on the European continent. Judges, part the history of the experience of private prosecutors, corrections officials, and ministries of entrepreneurs. It is also the history of institutions justice in a number of European countries have taken designed for one purpose that are subsequently great interest in electronic monitoring, even if they adapted for other purposes. Indeed, this is the genius have not embraced it with the enthusiasm of the of successful entrepreneurs generally. English. They have watched the American and I am not yet clear as to what all this means. I do English experiences with care, and after doing so, set not have a theory, and I am not advancing a cause. I out on a quite different path. They have been explicit am simply curious, and I am taking a look at some and emphatic in their desire to use the technology to readily accessible information and connecting some reduce reliance on prison, and they have devised dots. In my ambitious moments, I am inclined to carefully defined and controlled pilot programs to believe that the modern criminal justice system was pursue this objective. In many instances, electronic shaped by private contractors who in the pursuit of monitoring has been approved in conjunction with private gain, came up with innovations that new sentencing laws that, for instance, create a transformed the criminal process in a series of presumption of a noncustodial sentence for anyone developments that started with transportation and sentenced to six months or less in prison (Nellis, runs to electronic monitoring and an array of other 2014a; Nellis et al., 2012). Use of electronic forms of surveillance and control. But a more monitoring varies widely across Europe, and it is modest view is that public officials contracted with beyond the scope of this study to report on the private companies for help in implementing new successes of the various programs (see Nellis et al., reforms, and companies were successful in adapting 2012), but it does appear that officials there have and developing innovations that enhanced the taken a page from Sheriff Rainey's playbook and effectiveness of the criminal process. Presumably, as begun from the presumption that electronic I work through still more examples of innovation by monitoring should only be used to reduce reliance on private contractors, I will be able to determine incarceration for offenders who otherwise would whether to offer the stronger version or the weaker receive relatively short custodial sentences, which is version of this account. In still another sense, my a huge percentage of those doing time in both the project is a limited extension of some of the ideas put United States and England. By all accounts, this forth by Rusche and Kirchheimer (1939/1968), targeted approach has worked wherever it has been Melossi and Pavarini (1981), and Sellin (1976). tried on the Continent (see Nellis, 2014a; Nellis et al., Whatever version of this history best fits the 2012). One reason, I suspect, is that it has been case, it is clear that the history of modern criminal devised from start to finish, not by private justice administration is one of vastly expanded entrepreneurs, but by cautious officials in countries horizons and controls and technologies that have with strong, capable central ministries of justice who been introduced by private entrepreneurs. The simultaneously are charged with oversight for innovations I have examined here dramatically reviewing sentencing practices, correctional expanded and continue to expand the reach of populations, and criminal justice policy making. In criminal justice institutions in ways that were contrast, criminal justice administration and unimaginable just a few years before they were policymaking in the United States are fragmented in adopted. The contractors who have introduced them the extreme (see, e.g., Feeley, 2012). to the criminal process have participated in the Transportation and electronic monitoring are expansion of public social control even as the bookends in my analysis of privatization and innovations have been celebrated as reducing the innovation in the criminal process in the United scope and responsibility of government. States and England. Transportation was the first great This is not an obscure or hidden function of innovation in the modern Anglo-American criminal these innovations. Despite the language of justice system, and electronic monitoring is still only alternatives, most of the programs are specifically a revolution-in-the-making, but, in all likelihood, it designed to work the way they do. They are, as it will impact the criminal justice system in ways that were, hidden in plain sight. It is we who prefer to

Criminology, Criminal Justice, Law & Society- Volume 17, Issue 3 26 FEELEY mask them in benign dress. My object, however, is Carney, M. (2012). Correction through omniscience: not to debunk or to criticize, nor to praise. These Electronic monitoring and the escalation of developments may be beneficial at times and crime control. Washington University Journal of undesirable at others. More modestly, I simply want Law & Policy, 40, 279-305. to make the facts more explicit. An analysis of Damaska, M. R. (1981). The reality of prosecutorial public policy requires both sobriety and clarity. To discretion: comments on a German monograph. date, the discussion of alternatives of both yesteryear American Journal of Comparative Law, 29, 119- and today has been mired in obfuscation. Contractor­ 138. supplied transportation has come and gone, so perhaps we need not worry about it as much as I have DeMichele, M., & Payne, B. (2009). Offender done here. Nevertheless, electronic monitoring, supervision with electronic technology: private prisons, juvenile facilities, ICE detention Community corrections resource (2nd ed.). centers, drug treatment programs, pretrial diversion Retrieved from American Probation and Parole programs, privatized probation, and a host of other Association privately administered alternative programs are still net.org/eweb/docs/APP A/pubs/OSET 2.pdf in their infancy. No doubt some of these programs Dodgson, K., Goodwin, P., Howard, P., Llewellyn­ are deserving of support and expansion (see, e.g., Thomas, S., Mortimer, E., Russell, N., & Morris & Tonry, 1990). Some advance sound ideas Weiner, M. (2001). Electronic monitoring of and others may not. But whatever they are, we do no released prisoners: An evaluation of the home one any good if we mask their functions by labeling detention curfew scheme. London, UK: Home them as alternatives. Office. Eskirch, R. (1987). Bound for America: The References transportation of British convicts to the colonies, 1717-1785. Oxford, UK: Clarendon Press. Aviram, H. (2015). Cheap on crime: Recession-era politics and the transformation of American Enos, R., Black, C., Quinn, J., & Holman, J. (1992). punishment. Oakland, CA: University of Alternative sentencing: Electronically monitored California Press. correctional supervision. Bristol, IN: Wyndham Hall Press. Bales, W., Mann, K., Blomberg, T., Gaes, G., Barrick, K., Dhungana, K., & McManus, B. Feeley, M. M. (2002). Entrepreneurs of punishment: (2010). A quantitative and qualitative The legacy of privatization. Punishment and assessment of electronic monitoring. Retrieved Society, 4(1), 321-344. doi: from 10.1177/146247402400426770 https://www .ncjrs. gov/pdffiles 1/nij/grants/23053 Feeley, M. M. (2012). Court reform on trial: Why simple solutions fail. New Orleans, LA: Beattie, J. (1986). Crime and the courts in England: QuidPro. (Original work published 1983) 1660-1800. Princeton, NJ: Princeton University Press. Flango, V., & Cheesman, F. (2009). Effectiveness of the SCRAM alcohol monitoring device: A Barnet, N. P., Tidley, J., Murphy, J. G., Swift, R., & preliminary test. Drug Court Review, 6(2), 109- Colby, S. M. (2011). Contingency management 134. for alcohol use reduction: A pilot study using a transdermal alcohol sensor. Drug and Alcohol Gable, R., & Gable, R. (2005). Electronic Dependence, 118, 391-399. doi: monitoring: Positive intervention strategies. 10.10 16/j .drugalcdep.20 11.04.023 Federal Probation, 69(1), 24-41. Blomberg, T. G. (2003). Penal reform and the fate of Gainey, R., Payne, B., & O'Toole, M. (2000). The alternatives. In T. G. Blomberg & S. Cohen relationship between time in jail, time on (Eds.), Punishment and social control (2nd ed., electronic monitoring, and recidivism: An event­ pp. 417-432). New York, NY: Transaction history analysis of a jail-based program. Justice Publishers. Quarterly, 17(4), 733-752. doi: 10.1080/07418820000094741 Blunkett, D. (2004). Reducing crime, changing lives. London, UK: Home Office. Garland, D. (1985). Punishment and welfare. London, UK: Aldershot.

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Nellis, M. (2013). Electronic monitoring, satellite Radzinowicz, L. (1948). A history of English tracking and the new punitiveness in England criminal justice and its administration (Vol. 1). and Wales. In J. Pratt, D. Brown, M. Brown, & London, UK: Macmillan. S. Hallsworth (Eds.), The new punitiveness: Reitz, K. (2016). Trends, theories, perspectives (pp. 167-188). exceptionalism London, UK: Routledge. Nellis, M. (2014a). Upgrading electronic monitoring, downgrading probation: Reconfiguring 'offender management' in England and Wales. European supervision Journal of Probation, 6(2), 169-191. doi: Renzema, M. (n.d.). Evaluative research on 10.1177/2066220314540572 electronic monitoring. Kutztown PA: Nellis, M. (2014b). Digital by default? Electronic Department of Criminal Justice, Kutztown monitoring as e-governance and "commercial University. common sense" in England and Wales. Journal Renzema. M. (1992). Home confinement programs: of Offender Monitoring, 27(2), 15-29. Development, implementation, and impact. In J. Nellis, M., Beyens, K., & Kaminski, D. (Eds.). Bryne, A. Lurigio, & J. Petersilia (Eds.), Smart (2012). Electronically monitored punishment: sentencing: The emergence of intermediate International and critical perspectives. London, sanctions (pp. 41-53). Newbury Park, CA: Sage. UK: Routledge. Renzema, M. (2003). Electronic monitoring's impact Oldham, W. (1933/1990). The administration of the on reoffending. Kutztown PA: Kutztown system of transportation of British convicts, University Department of Criminal Justice. 1763-93 (Unpublished doctoral dissertation). Renzema, M., & Skelton, D.T. (1990). Use of University of London, London, UK. electronic monitoring in the United States: 1989 Padgett, K., Bales, W., & Blomberg, T. (2006). update. Washington, DC: NIJ Research in Under surveillance: An empirical test of the Action. effectiveness and consequences of electronic Renzema, M., & Mayo-Wilson, E. (2005). Can monitoring. Criminology & Public Policy, 5, electronic monitoring reduce crime for moderate 61-91. doi: 10.llll/j.l745-9133.2006.00102.x to high-risk offenders? Journal of Experimental Paterson, C. (2007a). Commercial crime control and Criminology, 1, 215-237. doi:10.1007/s11292- the electronic monitoring of offenders in 005-1615-1 England and Wales. Social Justice, 34(3-4), 98- Robinson, G. (2016). The Cinderella complex: 110. Punishment, society, and community sanctions. Paterson, C. (2007b ). Street-level surveillance: Punishment & Society, 18(1), 95-12. doi: Human agency and the electronic monitoring of 10.1177/1462474515623105 offenders. Surveillance & Society, 4(4), 314-- Rubin, A. (2012). The unintended consequences of 328. penal reform: A case study of transportation in Phelps, M. (2013). The paradox of probation: eighteenth century London. Law & Society Community sanctions in the age of mass Review, 46(4), 815-851. doi:10.111l/j.1540- incarceration. Law & Policy, 35(1-2), 51-80. 5893.2012.00518.x Pike, R. (1983). Penal servitude in early modern Rusche, G., & Kirchheimer, 0. (1968). Punishment Spain. Madison, WI: University of Wisconsin and social structure. New York, NY: Columbia Press. University Press. (Original work published 1939) Police Reform Act of 2002 (c.30). Retrieved from Schwitzgebel, R.G. (1965). Streetcorner research: http://www.legislation.gov.uk/ukpga/2002/30/co An experimental approach to the juvenile ntents. delinquent. Cambridge, MA: Harvard University Press. Private Security Industry Act of 2001 (c. 12). Retrieved from Schwitzgebel, R. G., Pahnke, W., & Hurd, W. http://www.legislation.gov.uk/ukpga/2001/12/co (1964). A program of research in behavioral ntents electronics. Behavioral Science, 9(3), 233-238. doi: 10.1 002/bs.3830090305

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Schwitzgebel, R. G. (1969). Issues in the use of an electronic rehabilitation system with chronic recidivists. Law & Society Review, 3(4), 597- This is an expanded version of the lecture I 615. doi:l0.2307/3052751 delivered at the annual meeting of the Western Society of Criminology in 2014 upon the receipt of Sellin, T. (1976). Slavery and the penal system. New the Paul Tappan A ward. I wish to thank the Society York, NY: Elsevier. for the award and for the opportunity to present this Sharpe, J. (1984). Crime in early modern England: lecture. In developing my ideas, I benefited greatly 1550-1750. London, UK: Longman. from conversations with and the comments of Ashley Rubin, Rosann Greenspan, Amnon Rubinstein, as Sharpe, J. (1998). Crime in early modern England: well as numerous colleagues. 1550-1750 (2nd ed.). London, UK: Longman. Smith, A. E. (1947). Colonists in bondage: White servitude and convict labor in America, 1607- 1776. Glouchester, MA: Peter Smith.

Spierenburg, P. (1984). The spectacle of suffering. Malcolm Feeley is the Claire Sanders Clements Cambridge, UK: Cambridge University Press. Dean's Professor of Law at the University of Taylor, F., & Ariel, B. (2012). Protocol: Electronic California Berkeley School of Law. Before joining monitoring of offenders: A systematic review of the Boalt Hall faculty in 1984, Malcolm Feeley was a its effects on recidivism rates in the criminal fellow at Yale Law School and taught at New York justice system. Campbell Systematic Reviews, 6. University and the University of Wisconsin. He Retrieved from http://docplaver.net/9412752- served as the director of the campus Center for the Protocol-electronic-monitoring -of-offenders-a­ Study of Law and Society from 1987 to 1992. He has systematic-review-of-its-effect-on-recidivism-in­ also been a visiting professor at Hebrew University, the-criminal-justice-system.html. Kobe University, and Princeton University. Tracy, J. D. (Ed.) (1990). The rise of merchant Feeley has written or edited over a dozen books, empires: Long-distance trade in the early and has authored several dozen articles in social modern world, 1350-1750. New York, NY: science journals and law reviews. Among his books Cambridge University Press. are The Process is the Punishment(l992), which received the ABA's Silver Gavel Award and the Vollum, S., & Hale, C. (2002). Electronic American Sociology Association's Citation of Merit; monitoring: A research review. Corrections Court Reform on Trial (1989), which received the Compendium, 27(7), 1-27. ABA's Certificate of Merit; and Fighting for Political Liberalism: Comparative Studies of the Legal Weisburd, D., Sherman, L., & Petrosino, A. J. (1990). The registry of randomized criminal Complex (with Terrence Halliday and Lucien Karpik, justice experiments in sanctions. Washington, 2008). His most recent articles examine issues of DC: U.S. Department of Justice. federalism, women and crime in the eighteenth century, prison privatization, and the role of bench Zedner, L. (2006). Liquid security: Managing the and bar in fostering political liberalism. market for crime control. Criminology and Criminal Justice, 6(3), 267-288. doi: 10.1177/1748895806065530

ENDNOTES

The year 1685 is a good date to settle upon, although it was not formally recognized as a punishment on its own until1718. 2 This graph was prepared by Ashley Rubin, and is based on material presented in her article, "The Unintended Consequences of Penal Reform: A Case Study of Transportation in Eighteenth Century London," Law & Society Review, 46, 815-851 (2012) and is used with her kind permission.) Some comments are necessary in order to interpret this graph. Were systematic figures available for the 1500s and up to 1680 and added to it, the death penalty, the middle orange segment, would be much larger, especially in contrast to the bottom right hand segment of the graph that consists of transportation.

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For an exhaustive description of the succeeding generation of electronic monitors, see Renzema, 1992; Paterson 2007a,2007b. 4 See Paterson 2007b and Jones 2014 for a discussion of various individualized reporting and surveillance devices that are or soon will be on the market and likely will be adopted. Formerly Securicor, which had merged with the Danish security firm, Group 4. 6 See Taylor & Ariel, 2012, for a discussion of the possible impacts of different types of equipment and levels of monitoring. For a more recent review on the quality of evaluation research in this area, see Taylor & Ariel (2012), whose conclusions are not much different.

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