Electronic Monitoring and Penal Reform: Constructive Resistance in the Age of “Coercive Connectedness”
| Author | Mike Nellis |
Introduction
England and Wales' radio frequency (RF) Electronic Monitoring (EM)-curfew scheme has long been the largest in Europe, and one of the largest in the world, having for several years sustained a 15,000 people per day peak, although in the last couple of years it has declined to nearer 13,000 (Hucklesby & Holdsworth, 2016). It has, in addition, always been distinct from its European counterparts by dint of being delivered by commercial organisations under (notionally) five yearly, renewable contracts with the Ministry of Justice, rather than being integrated in the practice of the state-based probation service (Paterson, 2007; Mair & Nellis, 2013). It is fair to say that early probation service attitudes towards EM veered between sceptical and hostile, as much because of antagonism towards the private sector delivery of it as towards the "surveillance technology" itself. Even the ascendant younger generations of probation officers and managers have generally regarded EM as "another agency's business", and shown no interest in using its inherent versatility to develop creative and penally defensible - or even progressive - forms of it, partly because some still find it impossible to imagine that it ever could be transmuted in this way.
Drawing on recent comparative research in Europe (in Belgium, Germany, the Netherlands, England and Wales and Scotland), Hucklesby et al. (2016:1) rightly observe that "EM has universal appeal because it fits or can be made to fit many purposes …” and saw “clear expectations in all jurisdictions except Germany, that [it] would be used more in the future" (p.12). It does, of course, depend on whom one asks but among policy-makers and penal managers there is indeed widespread acceptance of EM, an appetite for expansion and a mood of expectation. But this does not simply reflect a change of penal mood compared to the more cautious attitudes that prevailed, in mainland Europe back at the millennium, or even a sense that EM specifically has proved its penal worth and can now safely be built upon. More deeply, enthusiasm for it reflects the global ubiquity of computer-mediated action-at-a-distance, real-time communication, digital transparency and connectedness, the vast datification of contemporary experience and the routinisation of citizen's exposure to corporate and governmental monitoring. In a remarkably short period of time, modern western people have - relatively unreflectively - embraced the utility, convenience and pleasure of digital technology in so many spheres of contemporary life. In such a context, EM as a penal measure hardly stands out as something different, or to be resisted (Harcourt, 2015).
This paper will focus on recent developments in EM in England and Wales, in particular the dangers and opportunities arising from the Ministry of Justice's stalled attempt at "disruptive innovation" - developing the large scale, bulk use of GPS tracking as part of the Transforming Rehabilitation agenda (Ministry of Justice, 2013). The stall, which may only be temporary, potentially opens up a space for belated engagement with EM by probation interests and penal reform bodies, whose narrow conception of its possibilities and relative silence on the issue has in effect allowed public debate in England to be dominated by influential neoliberal think tanks like Policy Exchange and Reform. A more informed and contextualised theoretical understanding of EM as a form of "coercive connectedness" will be offered, and the suggestion made that while the measure cannot be refused in its entirety in a digital age, it must be actively shaped and constrained in ethically and penally-defensible ways if it is not to be used damagingly, and to excess (Jones, 2013).
How exactly this "shaping-debate" plays out will reflect political and penal configurations in different countries, and may not involve the same actor networks in all cases. The balance of forces for and against EM in established "penal fields" (Page, 2013) will vary, and, as the example of Germany shows the resistance of cultural, legal and political traditions to state surveillance will affect the forms and scope of EM's development - there has been, and still is nothing inevitable about EM's large-scale expansion; it may simply, and more appropriately, find a particular penal niche, or several. But in England and Wales the Conservative government has declared its intention to contemplate mass expansion of EM, aided and abetted by neoliberal think tanks. Resistance from probation interests and liberal-left penal reform bodies has been negligible, but their more informed involvement is now vital if the neoliberal right is not to retain its freehold on the future of EM.
The collapse of the "Third EM Contract"
It never helped the probation service in England and Wales that, from the onset of initial debates on EM in the late nineteen eighties, successive British governments used EM (and its private sector location) as a means of intimidating the service into accepting "punishment in the community", making veiled threats that probation would itself be replaced by another agency if it did not give ground. Governments persistently portrayed EM as self-evidently modern (and therefore desirable), and implicitly superior to the professional social work and public service ethos to which probation clung, the remnants of which were to be expunged in the Transforming Rehabilitation programme. Given this, it is perhaps paradoxical that EM has actually figured so little in the agendas of the new Community Rehabilitation Companies (CRCs), and the National Probation Service, now that probation itself has largely been privatised, and - while it might be prudent to be careful what one wishes for - these new agencies' absence (or exclusion) from the debate about the future of EM in England and Wales is unhelpful, because it is with their other services to offenders that EM ought to be integrated.
This absence of such key actors reflects not only path dependence on the old "parallel tracks" model of probation and EM policymaking but also the misguided approach of the Conservative-led Coalition's Ministry of Justice to developing the third EM contract (whose foundations were in fact laid under New Labour) (Mair & Nellis, 2013). It has retained the top down, centralised approach of the first two contracts and ignored considered advice from Policy Exchange itself (Geohegan, 2012), that a more localised market approach to contracting EM would be more efficient and less expensive, based on the promising results of police-probation Integrated Offender Management (IOM) schemes which had been using GPS tracking since 2010.
Some irony is in play here. The Coalition government's White Paper Punishment and Reform (Ministry of Justice, 2012) did attempt to overcome the "parallel tracks" model: privatising probation services and expanding EM were juxtaposed as implicitly entwined strands in the same strategy to transform community supervision, but with insufficient detail for it to signal what government ambitions actually were, or to enable proper public discussion. Ministry intentions crystalised under Justice Secretary Chris Grayling, probably in more convulsive ways than would have occurred if his more temperate predecessor, Ken Clarke, had remained in post. It is arguable that Grayling would not have pursued the high risk strategy of privatising - deprofessionalising and intrinsically downgrading - probation quite so relentlessly if he had not also had a grand plan to expand and upgrade EM to an all-GPS system (hubristically-named "New World") alongside it, premised on the belief that this would actually be the innovative silver bullet which reduced reoffending even if privatised probation itself fell short.
The Ministry's business model for the third EM contract - requiring collaboration between four companies, three of who might more usually have seen themselves as competitors - was never all that appealing to the EM business community themselves. Even in early 2013, when the Ministry began canvassing commercial interest in its complex tender document it was already mooting the prospect of having 75,000 offenders monitored per day, achievable perhaps by 2020, to entice companies on board. This figure had not in fact been plucked from thin air - it derived from a model of future EM use (replacing "outdated" RF technology with a new bespoke tag, yet to be designed, that combined both RF and GPS capabilities) put forward by Policy Exchange, which also favoured localised procurement and service delivery rather than yet another centralised contract (Geohegan, 2012:22). Policy Exchange was wrongheaded about both the supposed penal supremacy of GPS over RF and the viability of bulk monitoring as a means of reducing recidivism - it even imagined the possibility 140,000 offenders per day being subject to it. While it was made public that the Ministry of Justice rejected Policy Exchange's view on local procurement, it was never openly disclosed that they did actually adopt the think tank's transformational vision of EM, although it was possible, in insider networks, to know that this was the case.1
Capita (service integration and delivery), Airbus (mapping software), Buddi, later replaced by Steatite (hardware, ie tags) and O2 Telefonica (telephony services) were eventually picked as "preferred bidders" to create the new EM service. In fact, Grayling's grand plan crashed and burned, without any external pressure - without, in fact ever fully becoming a contract - having proved as internally unworkable as the wary commercial organisations had originally anticipated. The roll-out to an all GPS system was expected to begin in late 2014, and be completed by mid-2015, with the numbers building up after that. The Ministry had failed to anticipate intellectual property disputes among the commercial collaborators, demanded unfeasible technical...
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