<< How Not To Pick a Supreme Court Justice | Main | News Scan >>


Q: Why Do Normal People Ignore Legal Academia? Part II

| 0 Comments
In a post a few days ago, I noted what was advertised as a scholarly article arguing that "data-driven" analysis, assessed through the lens of law and economics, tells us that we can and should abolish prison.  I had my doubts, as did everyone who commented on the entry.

Still, legal academics, for all their zaniness, keep on keepin' on.

Today's specimen, featured (as was its predecessor) in SL&P, tells us that we can virtually abolish prison through technology.  Ankle bracelets, movement monitors, and a nifty gadget called a "conducted energy device" (which appears to be a euphemism for an electronic shock belt) would "achieve all of the appropriate objectives of imprisonment, including both the imposition of proportionate punishment and also community protection."

Where to start?
One place we can start is with the sole comment so far on SL&P, from a centrist attorney who goes by the moniker "tmm:"

 I can already see the claims that the conducted energy devices are either excessive force under the Fourth Amendment or cruel and unusual punishment under the Eighth.

If the legal challenges fail, the next question would be fool-proofing the method -- assuring that the devices do provide an appropriate shock when the prisoners do exit the authorized area and do not mistakenly deliver such a shock to prisoners who are still within the authorized areas. If "work release" and routine shopping is authorized, I could see problems with what routes are authorized routes from home to work or the store. (Does a detour to avoid a traffic accident represent a departure from the authorized route and would you really want to deliver a sufficient immobilizing shock to someone operating a motor vehicle.)

If you get past both the legal and the technological issues, the question then becomes what offenses are "exempt" from this alternative. If the goal is incapacitation, you almost certainly have to exempt most drug cases. (Convicted dealers could still sell out of their homes; and convicted users could still buy at their homes.) Probably, domestic violence and child abuse (both physical and sexual) would have to be exempted as they are often committed in the defendant's home. Without doing a detailed numbers analysis, I would expect that this proposal would quickly be limited to property offenses with minimal impact on prison population and would be used mostly for people who currently get probation.

I agree with all that, which pretty much debunks the idea of replacing prison with technocorrection punishment, yet does so without even mentioning its central flaws.

The first such flaw is that prison is meant as confinement  --  i.e., as a punishment that deprives the criminal of the ability to go about in the more comfortable world he is used to. The idea is that he has earned this drop in his living standard as retribution, and that avoiding similar unpleasantness in the future might act as an incentive for him to quit stealing stuff or selling smack or whatever earned him his sentence to begin with.

None of that is even mentioned.

The second flaw is (a) that the devices can be removed, which happens easily and often; or (b) can give not just false positives but false negatives (i.e., the criminal can go where he's not permitted and nothing will happen); or (c) one or two or all three of the suggested components will simply malfunction; or (d) the register will function but no one will take note; or (e) they'll take note but think the infraction too trifling to report (or just too much trouble to report); or (f) there will be a delay between reporting it and doing something to correct (much less stop) the misbehavior; or (g) it won't get corrected or stopped anyway, because of leniency, indulgence, incompetence or just laziness.

The idea that the authors don't know about these flaws is impossible to believe.  All of them are widely known problems in techno-corrections, and have been reported on in wonderfully illuminating detail by, for example, the Washington Post in its excellent series. Second Chance City, https://www.washingtonpost.com/investigations/off-the-grid-how-a-violent-offender-slipped-through-the-dc-justice-system/2016/05/13/ba4ca96c-ebba-11e5-bc08-3e03a5b41910_story.html?utm_term=.678ebbe15343

So why do normal people ignore legal academia?  Because normal people understand that what "no prison" very often will turn out to mean  --  and for the most part is tacitly intended by academics to mean  --  is "no punishment," which is what all this nonsense is actually about, whether academics are honest enough to admit it or not.  

Some are.  

Most aren't.

Or, to put it more succinctly, normal people ignore legal academia because they aren't stupid.



Leave a comment

Monthly Archives