We are much less Greeks than we believe. We are neither in the amphitheatre, nor on the stage, but in the panoptic machine, invested by its effects of power which we bring to ourselves since we are part of its mechanism. The importance, in historical mythology, of the Napoleonic character probably derives from the fact that it is at the point of junction of the monarchical, ritual exercise of sovereignty and the hierarchical, permanent exercise of indefinite discipline.
—Michel Foucault
The UK’s Ministry of Justice recently announced an electronic sentencing system where those accused of petty crime can now plead guilty online and receive an automated computer-generated sentence. In its report (“Transforming our justice system,” February 2017), the Ministry of Justice suggests first testing the system with non-imprisonable offences such as railway and tram fare evasion and “possession of unlicensed rod and line.”
Maintaining that this system would be entirely voluntary, the first concern that comes to mind when reading the government report is that much of the media hype over the electronic sentencing assumes that the law is executed through computer algorithm causing concern to many about potential systemic errors. Later in the document this doubt is clarified in confirming that the sentence is not computer generated or algorithm controlled but rather is a codified system where each offence has a specific penalty pescribed:
The detail of the penalty will be set out in secondary legislation and the amount of the standard penalty to be imposed on an offender will be specified for each offence. The total penalty will include a Victim Surcharge imposed, as now, as a percentage of the fine; a standardised amount of prosecution costs; and may include an amount to cover simple compensation for financial loss, where appropriate (e.g. unpaid ticket revenue) up to a specified level.
According to the Ministry of Justice, the reason for this accelerated form of self-service sentencing has far more to do with the justice system’s daunting problems of dealing with an increased population, overcrowded prisons, and the augmented lack of resources than it does in attempting to streamline its systems. Being able to deal efficaciously with minor criminal proceedings would necessarily free up resources for far more complex and lengthy cases. The Ministry of Justice explains, “This procedure will therefore only apply to cases which already generally require minimum involvement from magistrates and would otherwise be decided by a single magistrate on the papers without the need for a court hearing through the Single Justice Procedure (SJP).” But how might this streamlined justice system cause problems which are often unforeseeable to many?
Another question which comes to mind is how might users who have learning disabilities or who are otherwise vulnerable not be swept up in a system of which they have little to no understanding? Also, it is important to keep in mind those individuals who are unduly intimidated by any accusation with no recourse to legal council. Here is the Ministry of Justice’s argument on this matter:
The system will safeguard vulnerable people as it will be designed to prevent users from pleading guilty without a full understanding of their decision and the potential consequences. Defendants will be presented with all the relevant evidence against them provided by the prosecutor when considering whether to choose the automatic online conviction procedure. Part of the process will be a ‘decision tree’, which will require the user to accept that they have understood the information presented to them, and thus ensure they are not wrongly pleading guilty. The potential consequences of a criminal conviction, such as the disclosure regime, will be clearly explained.
While this explanation seems plausible, it is entirely realistic that even with a “decision tree,” that vulnerable people would easily not understand such steps in their entirety. Moreover, the computerisation of penal processes would hurt even those who are not “disadvantaged” in the traditional sense of the word, but for whom fighting “the system” is not an option, due to issues of motivation, personality, or simply exhaustion. We all know that there are individuals who are not fighters and who would rather concede, pay a fine and move on. If the repercussions on their future employment were not fully understood by the defendant or if intimidation due to the subject being an immigrant, for instance, then this system would lead to many innocent being caught up in a system where they feel they must pay fines and plead “guilty” for accusations where they are actually innocent. Even the most capable of people are unable to translate online bureaucracy into comprehensible, understandable concepts. (Just think how full-sentence messages from friends about dinner plans can be easily misinterpreted.) This form of electronic sentencing would also negatively impact those individuals of lower socioeconomic means since these are the people who do not have the time or means to fight the system and who, as a result, end up pleading guilty even if innocent.
Still, the message of electronic justice is not unilateral across all crimes since earlier this week, Chief Constable Simon Bailey of the UK’s national Police Chief’s Council suggested that paedophiles who collect indecent images of children should not be jailed at all. What is becoming clear is that there are specific protections extended to certain types of crimes: for instance finding a £20 bank note on the floor of a shop, can land you with a conviction of theft as one woman found out recently, but collecting images of children being raped is now not a imprisonable offence. We are living in the full-blown age of capitalism as judiciary.
While the merits of online technology are certainly notable in the world around us, there are so many abuses of this technology that go undiscussed, to include in government and law enforcement strategies. Wwith data losses and privacy breaches regularly reported by government agencies and private corporations, the uses and abuses of a computer-generated justice system should be met with extreme caution. So while looking through your social media feed, beta testing the newest virtual reality app for your mobile telephone, or just reading up on the latest Android Wear 2.0, the last idea that might come to mind is how new technology is being used to form “The People’s Court.” The reality, however, is that the legal system is moving further and further away from the people. If anything, this measure, despite its good intentions to focus needed energies on other seemingly “more urgent” cases, ends up creating an Orwellian situation for the British public where the justice system operates within the framework of Taylorism and cost-effectiveness over humanism.
All this is reminiscent of what Michel Foucault underscores as the real danger of disciplinary power which is not that individuals are repressed by the social order, but rather the fact that they are “carefully fabricated in it.” When power penetrates the behaviour of individuals, it becomes more efficient through the mechanisms of observation, the recording of actions, and knowledge always in search of its “new objects of knowledge over all the surfaces on which power is exercised” (Discipline and Punish, 1977). When only certain people or specific groups of individuals control knowledge, oppression is a always a possibility—many would argue an inevitability. How human actions are recorded, inscribed into law, and exercised through its penal systems are, in a strangely McLuhan-esque, the medium which becomes the message.
Electronic prison sentencing is a dehumanisation of automatised bureaucracies of the modern state which pose series threats to society’s most disadvantaged which inscribing a normalising of the state of emergency which is self-authorised to mechanically dole out punishment.