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Electronic Monitoring in a Culture of Surveillance

  • Tom DaemsEmail author
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Abstract

This chapter explores the history and development of electronic monitoring as part of contemporary cultures of surveillance. It discusses the birth and spread of electronic monitoring worldwide, with particular attention for the case of Belgium. The chapter also introduces Willem Nagel’s work on the functions of imprisonment and it explains why a similar approach is useful to study electronic monitoring as part of current cultures of surveillance.

Keywords

Electronic monitoring Surveillance Functions of imprisonment 

Introduction

On 23 August 2013, Belgian newspaper De Tijd published a short report entitled ‘Electronic meal vouchers on the rise’:

Slowly but surely, Belgians seem to be embracing electronic meal vouchers. This is the finding of a survey carried out by the retail federation Comeos. “One in three meal vouchers currently handed out is electronic”. In supermarkets, one in four payments with meal vouchers are already processed electronically. In restaurant chains, this figure is around 15 percent. More and more employers are therefore switching from paper versions of the vouchers to the system that uses cards on which a monthly amount is deposited. The electronic voucher was introduced two years ago.

That same day, on the same page, the same newspaper, in an adjacent column, published a report entitled ‘Electronic monitoring almost doubled’:

The number of people under electronic monitoring has almost doubled in just over a year and a half to 1,567 … Every day, around 1,500 people are monitored in this way, either with a traditional ankle bracelet or with a speech recognition system. This figure has almost doubled since the end of 2011, when 800 people were monitored in this way. By the end of this year, 4,500 people will have served their sentence via electronic monitoring. Only 9 percent of those involved commit another offence afterwards.

It seems unlikely that the simultaneous publication of both newspaper reports, so close together, is the result of a targeted editorial strategy. However, perhaps the publication of both reports together is not such a coincidence? It concerns two technological applications that, in a certain sense, characterise today’s society and its fascination with electronics; both are also on the rise and quickly find their way to relevant customers; they also have a relatively short history and nothing seems to be standing in the way of a promising future.

Nevertheless, there are also important differences. The electronic meal voucher is a means of payment that allows one specific goal to be achieved: it makes it possible to successfully conclude a transaction and, as such, to realise the purchase of, for example, a loaf of bread, a bag of potatoes, a pizza or a tin of peas. This is somewhat more complex when it comes to electronic monitoring (hereinafter: EM). Indisputably, this also concerns a means of achieving a goal, but which goal—or goals—are involved? On closer inspection, this does not seem to be particularly clear. For EM (as well as conditional and provisional release), the ministerial circular no. 1794 states the following: ‘The law does not define any explicit objectives for these penalty implementation modalities’ (Ministry of Justice 2007: 22). In addition, the pursuit or achievement of a certain goal (such as reducing overcrowding) can also lead to less effective action in another area (for example, the reintegration of those under surveillance). In contrast to electronic meal vouchers, it is not possible to understand EM without taking into account the operation and supervision by the agents involved: technicians, justice assistants, prison directors, monitoring staff, central administration, the police, investigating magistrates, housemates; their relative contribution—or lack thereof—exerts a decisive influence on the way in which surveillance will be exercised.

While most of us probably do not care that much about the fact that the success of the electronic meal voucher hardly provokes any debate, this is not the case for EM. A decade ago, in a reflection on ten years of policy and research on EM in Belgium (Daems et al. 2009a), we came to the conclusion that the use of EM in Belgium had increased rapidly in just ten years time, but that the available scientific research had played little or no role in policy decisions and that reflection on EM’s place in criminal justice was, for the main part, lacking. EM seemed to be, above all, a cheap and easily deployable means of remedying all kinds of problems in the Belgian criminal justice system:

If the seller of a new drug says it can have an effect against one or two diseases, maybe there’s something to it. However, if it is presented as a remedy for just about all ailments, be aware of quackery … these days, EM presents itself as a possible remedy for all kinds of shortcomings in our criminal justice system: some people want to make it a separate punishment, others see it as an alternative to pre-trial detention and others still see it as a better, more human and reintegration-oriented penalty implementation modality for the custodial sentence and just about everyone hopes it helps in the fight against the overcrowding of prisons. (Daems et al. 2009b: 127)

As we will discuss in the next section, in Belgium EM has not lost any of its appeal since then. Moreover, also in other countries in Europe and beyond we have seen a growing interest in tagging offenders—even though the picture is complex and mixed. We will explore EM as part of contemporary cultures of surveillance in the next section of this chapter. For our purpose here we use the definition of EM of Nellis and Roswell, ‘EM technology must be understood as nothing more or less than a form of remote surveillant control, a means of flexibly regulating the spatial and temporal schedules of an offender’s life’ (quoted in Nellis et al. 2013b: 4–5). As Nellis et al. (2013b: 5) suggest, this definition shows the ‘emptiness’ of EM as a stand-alone measure: ‘Yet its “emptiness” is also its strength (from the standpoint of politicians and criminal justice managers): it can be used in so many different ways, it can be ascribed many different aims and it can easily be adapted to different situations’ (Nellis et al. 2013b: 5).

Radio-Frequency (RF) technology is still most commonly used to enforce a curfew or house arrest. Offenders usually wear an ankle bracelet or wristband that allows to monitor and verify their location. When offenders leave their home or other designated place (or when they tamper with the monitoring equipment) the system sets off an alarm signal. In recent years also Global Positioning Systems (GPS) have increasingly come to be used. One major difference is that these allow to track the movements of offenders and to create inclusion and exclusion zones (such as playgrounds, victims’ home, schools etc.). The market of EM technologies is vibrant and constantly changing. Nowadays EM also takes place through enhanced models equipped with remote breath alcohol testers or transdermal alcohol testing systems; voice verification technology which uses biometric voiceprints; bilateral monitoring in cases of domestic violence which gives victims a device that alerts them when offenders are in their vicinity; and newer technologies using smartphones, apps, facial recognition and, in the future, maybe even gait analysis and heartbeat detection (see e.g., Gable 2017; Hucklesby et al. 2019; Thomas 2019). All of these applications share that they are about tagging and monitoring offenders in time and space, in order to verify where and when their bodies are situated, whether they are in the right place on the right moment.

In this little book we will focus on the functions of EM. In doing so, we are inspired by the Dutch criminologist Willem Nagel who wrote a fascinating and though-provoking book in 1977 entitled De funkties van de vrijheidstraf [The functions of imprisonment]. In his study, Nagel identified 57 such functions. Upon closer inspection, a number of these functions were counted twice. In addition, not all of the functions he listed were dealt with in equal detail—and some not at all. By discussing the functions of imprisonment in this way, Nagel nevertheless demonstrated how complex the debate about imprisonment is (or at least how complex it should be) and which sometimes conflicting manifest—but also latent—functions are involved. In the final section of this chapter, we will briefly discuss Nagel’s book and his distinctive approach towards studying the complex history of imprisonment. In Chapters  2 and  3 we will then attempt to replicate Nagel’s exercise, but applied to EM: what are the functions of EM? It is not our ambition to offer a systematic or exhaustive review of EM in this little book. Rather we aim to offer an exploration of 22 different functions of EM. As we will argue in the final chapter, such an exploration may be particularly useful and it may offer inspiration for future research and debate on EM in contemporary cultures of surveillance. Listing and discussing these functions in the next two chapters, in an alphabetical and uneven way, like Nagel did for the prison, will help us to defamiliarize EM, like it helped Nagel to question the natural, taken-for-granted character of the modern prison.

EM and Contemporary Cultures of Surveillance

The Birth and Spread of EM

The history of EM goes back at least to the early 1960s. In a brief article (‘Delinquents with tape recorders’) published in 1963 in New Society, a now defunct social science review that offered a forum to discuss and disseminate findings to a wider public, Schwitzgebel (1963) discussed some of the findings of a project called ‘Streetcorner research’, which started in 1958 in Boston, at Harvard University. For this project 20 young offenders were asked to talk into a tape recorder about self-chosen topics for about 2–3 hours a week. Towards the end of the article there were some brief observations on a newly designed electronic communications system. Delinquents attached a so-called ‘behaviour transmitter reinforcer’ to their belt and wore it wherever they happened to go. The small unit transmitted a tone signal that could be received and recorded at the base station. Schwitzgebel went on to suggest that such ‘behaviour transmitter reinforcers’ have at least three purposes: (1) research (recording the location of delinquents could help determine their whereabouts which may proof more reliable than self-reported data: ‘Data obtained by electronic means are not subject to the purposeful [or the unintentional but unavoidable] distortion of recall from memory’ [Schwitzgebel 1963: 13]); (2) preventive parole (persons on parole could be required to wear the unit during certain hours, e.g., when the parolee is at a higher risk of reoffending because of where he is at a particular time. Moreover, wearing the unit may also help refute false accusations: ‘Persons on parole are often suspected of committing crimes of which they are, in fact, innocent. An objective record of their whereabouts may alleviate unnecessary suspicion’ [Schwitzgebel 1963: 13]); and (3) immediate reinforcement (a transmitting set could allow to more immediately reinforce desirable behaviour: ‘…reinforcement of small units of behaviour may be a clue to more effective development of social skills’ [Schwitzgebel 1963: 13]).

One year later, in a paper outlining an ambitious programme of research in behavioural electronics, Schwitzgebel et al. (1964) elaborate on this; the central objective of behavioural electronics is, so they argued, the understanding, maintenance and modification of human behaviour (Schwitzgebel et al. 1964: 233). In this paper we see one of the first predictions that electronic progress could contribute to making prisons obsolete and heralding a new phase in the history of punishment. In a section on ‘electronic parole’, the authors formulate it as follows:

Society has moved away from the physical confinement of a person to control his behavior. The stockade of the ball and chain were replaced by the institutional courtyard; the courtyard is now being replaced by the farm and half-way house. When specific offending behaviors can be accurately predicted and/or controlled within the offender’s own environment, incarceration will no longer be necessary as a means of controlling behavior and protecting society. (Schwitzgebel et al. 1964: 237)

Towards the end of the paper, they added: ‘A new horizon opens before us as human relationships can now begin to develop beyond the historical barriers of space and form’ (Schwitzgebel et al. 1964: 238).

This was 1964. In the meantime things have changed in manifold and, as it turned out, unforeseen ways: these early predictions of Schwitzgebel et al. (1964) about the final days of the prison predate the rise of penal confinement world-wide from the 1970s onwards—in particular in the US, where the prison population increased exponentially (on this, see e.g., Garland 2001a, b; National Research Council 2014). Schwitzgebel et al. (1964) were not alone in making such wrong predictions about a new world without prisons; indeed, their predictions illustrate and confirm, once more, how unpredictable penal change often is and that we do not have a crystal ball to predict the future (on this, see Daems 2008: 5–10). But such predictions—however ill-founded they may have turned out to be—convey something of the hope and fascination that electronic progress was (and is) able to incite; how technology was (and is) believed to be a bearer of progress and humanization—including in the dirty business of punishment. Lilly and Nellis therefore relate the origins of EM in the US to the notion of ‘technological utopianism’, that is, ‘…a distinctively US outlook on social progress, in which technology is considered indispensable to the creation of a convivial life and to the solution of pressing social and political problems’ (Lilly and Nellis 2013: 22).

Notwithstanding some early experiments and enthusiasm in the late 1960s we would have to wait till the early 1980s before the use of EM in criminal justice practice really took off. EM first came to be applied in 1983 in the US when Jack Love, a district judge in Albuquerque, subjected a probation violator to EM (Lilly and Nellis 2013). Throughout the 1980s EM would grow steadily and spread throughout the US. Towards the end of the 1980s EM also came to be introduced in Western Europe: England and Wales (1989), Sweden (1994) and The Netherlands (1995) were the first to experiment with EM (Gudders 2019). Nowadays, EM is widely used in many jurisdictions across the globe. In the US the number of people under EM rose nearly 140% in a 10 year period, from 53,000 in 2005 till over 125,000 in 2015. Interestingly, there is a sharp rise here in the use of GPS, from approximately 2900 in 2005 till about 88,000 GPS units in 2015. The number of RF units, however, fell, from over 50,000 to below 38,000 (The Pew Charitable Trusts 2016: 1, 3). For Europe it is difficult to get a clear picture (on this, see Dünkel et al. 2017b). Based on incomplete data for 2010 Nellis (2014: 490) concluded that EM was used in about 27 countries; 12 countries were not using EM. However, as Nellis added, such numbers leave us with many questions:

Useful as it is to know the number of “the jurisdictions using EM”, such lists nonetheless fail to capture the widening range of EM technologies, their very varied modalities (different legal forms and purposes),whether schemes are restricted to particular regions or are nationwide - as well as begging the question as to how penally significant EM has actually become in a particular jurisdiction, in comparison to more traditional penal measures. (Nellis 2014: 490)

The findings of the most recent survey of the Confederation of European Probation (CEP) on EM in Europe, conducted for the 2018 conference in Zagreb, Croatia, were far from complete (data related to 15 European countries) but, nonetheless, the report shows that EM is being used in different parts of Europe, at different stages of the criminal justice process, with France being the leader on the European continent, comparable to England and Wales (who did not respond to the survey) (see Kylstad Øster and Franco Caiado 2018). Other indicators for how EM has captured the attention of politicians, policy makers and practitioners within Europe are the bi-annual conferences on EM organized by the CEP (Nellis 2014; Gudders 2019) as well as the adoption of the Council of Europe’s Recommendation on Electronic Monitoring (Council of Europe 2014). Another avenue to explore EM’s inroads in criminal justice systems across the globe is to study how the EM industry develops (see Nellis 2018: 131–132). Early January 2019 IoT analyst firm Berg Insight published a press release with new findings on the market of EM, with as title ‘The electronic offender monitoring market in Europe and North America to reach € 1.0 billion in 2022’. According to Berg Insight the market for EM equipment and services was in a growth phase:

The number of participants in EM programmes on a daily basis amounted to around 36,000 people in Europe and around 155,000 people in North America in 2017. The market value for EM including equipment, software and services in Europe was € 170 million in 2017. Growing at a compound annual growth rate (CAGR) of 11 percent, this number is expected to reach € 285 million by 2022. The North American market for EM is forecasted to grow at a CAGR of 6 percent from US$ 580 million in 2017 to US$ 785 million in 2022. (Berg Insight 2019)

Given EM’s intrinsic connections to technology and surveillance it seems obvious to relate its birth and increasing deployment to some deeper transformations within contemporary societies, as captured in denominators such as ‘maximum-security society’ (Marx 1988; Corbett and Marx 1991), ‘societies of control’ (Deleuze 1992), ‘surveillance society’ (Lyon 1994, 2001), ‘expository society’ (Harcourt 2015), or ‘culture of surveillance’ (Lyon 2018). Recent reflections on the role of surveillance in everyday life increasingly move away from the images conjured up by George Orwell’s 1984 or Michel Foucault’s use of Jeremy Bentham’s panopticon. In his latest book David Lyon (2018) suggests that Dave Eggers’ The Circle captures much better how ‘…life is increasingly subsumed into a digital world, encircled by cyberspace’ (Lyon 2018: 3). In such a world ‘Big Data’ prove to be a bigger challenge than ‘Big Brother’. In cultures of surveillance watching itself has become a way of life. This also explains why Lyon (who was one of first to write about ‘surveillance society’ [Lyon 1994, 2001]) now prefers to speak of ‘surveillance culture’: ‘Surveillance is no longer merely something external that impinges on “our lives”. It is also something that everyday citizens comply with – willingly and wittingly or not – negotiate, resist, engage with and, in novel ways, even initiate and desire’ (Lyon 2018: 9).

Interestingly, also in criminology we have seen some creative thinking beyond the panopticon, in order grasp some of these contemporary developments. Thomas Mathiesen (1997) suggested that the concept of the panopticon needs to be supplemented with the synopticon because, so he argued, in a ‘viewer society’, pervaded by mass media, the few see the many, but the many also see the few. Fergus McNeill (2019) recently argued to expand our conceptual tool-kit with the malopticon in order to ‘…recognize mass supervision as “Maloptical” as much as “Panoptical”. Through the “Malopticon”, the penal subject is seen badly, is seen as bad and is projected and represented as bad’ (McNeill 2019: 207). Older discussions on decarceration have come to be supplemented and, at times, related to debates on ‘e-carceration’ and the rise and spread of ‘virtual’ or ‘digital’ prisons (see e.g., Kilgore et al. 2018).

Tagging offenders, then, seems to have become a taken-for-granted part of societies where surveillance practices are omnipresent, from the use of smartwatches and apps to monitor one’s health or sport activity to the deployment of wrist bands to track the whereabouts of small children or elderly suffering from dementia. Indeed, tagging offenders happens in a world where practices as diverse, and at times as controversial, as using apps for ‘wife tracking’ in Saudi Arabia (Bennett 2019) or deploying GPS technology to saving babies’ lives in remote areas in rural Kenya (Berhanu 2019), have secured a place in the order of things. The purposes of such technologies may be very different—usually: control, care or convenience (see Michael et al. 2006)—but they do have in common that they all are about locating and monitoring the movement and functioning of human bodies. Addressing the question ‘why EM?’ therefore implies that we need to engage with such wider currents, as studied in the burgeoning literature on surveillance societies and cultures.

However, at the same time we have to be cautious. When EM is studied more closely and comparatively we can observe very different and, at times, contradictory developments. Within Europe EM has not been a relentless juggernaut-like force transforming criminal justice systems. Next to jurisdictions where EM has grown rapidly—such as England and Wales, France and Belgium—the story is very different elsewhere, for example in Italy or Germany (see e.g., Nellis et al. 2013a; Hucklesby et al. 2016; Dünkel et al. 2017a; Kylstad Øster and Franco Caiado 2018). The same is true for EM outside of Europe. In Canada EM has been for a long time a ‘sleeper issue’ and it has assumed only a ‘low profile’ (Wallace-Capretta and Roberts 2013: 45). In Australia and New Zealand, EM came to be utilized in a wide range of settings but also here there has been little public debate about EM and there has been no sea change in terms of the numbers of offenders being monitored (Smith and Gibbs 2013), even though things seem to be changing quite dramatically in Australia in recent years (Herbert 2019). And despite the considerable growth of EM in the US it is still a relatively minor phenomenon: ‘Nationally, nearly 7 million people were in prison or jail or on probation or parole at the end of 2014, but individuals tracked using electronic devices in 2015 represented less than 2 percent of that total’ (The Pew Charitable Trusts 2016: 3). We should therefore try to avoid jumping too quickly to conclusions about EM’s transformative impact. As Mair and Nellis (2013: 78–79) note for England and Wales, which has the largest EM scheme in Europe, ‘…the real lesson of British experience with EM is how little difference the stimulus of technological innovation actually made to penal practice …it has not had even a modestly transformative effect on the enduring punitive traditions that ensure Britain’s continuing place near the top of European league tables of prison use.’

This complex and contradictory picture of the global development of EM implies that we cannot understand EM simply as a natural product of a culture of surveillance, as Edwin Sutherland’s theory of ‘cultural consistency’ would suggest: ‘The societal reactions to lawbreaking and the methods used to implement or express those reactions show a general tendency to be consistent with other ways of behaving of the society’ (Sutherland and Cressey 1970: 337). Indeed, notwithstanding its obvious affinity with key features of contemporary cultures of surveillance EM apparently does not always succeed in finding its way to criminal justice systems as rapidly as one might expect or hope; and, indeed, at times it fails to do so altogether. When we refer to a culture of surveillance in the title of this little book we therefore do not suggest that there exists a direct or automatic connection between EM and such a culture; on the contrary, the point of departure of this volume is that EM becomes a possibility, technically and mentally, but that its deployment implies further and wider reflection and research. Unlike other technological innovations (such as the electronic meal vouchers, that we discussed in the introduction to this chapter) EM, when used for tagging offenders, is a much more complex technological innovation issue that deserves careful attention and needs to be understood against a wider context. For that reason we will need to defamiliarize EM as a necessary prolegomenon to further its understanding. One way to do so, will be to explore the many different functions of EM, following in the footsteps of Willem Nagel. But before introducing Nagel’s work in the next section, we briefly clarify why we pay special attention to Belgium in this book.

EM in Belgium

EM was introduced in Belgium in April 1998. It started as a small-scale experiment, organised from within the prison of Saint-Gilles, Brussels. Initially it was only intended for inmates who were close toward the end of their prison sentence. In that period two monitoring systems were being used: RF technology and voice verification. However, voice verification was soon discontinued because of technical problems. The start-up of the project proved to be slow and cumbersome: ministerial circulars were amended multiple times and selection criteria relaxed in order to increase the number of people under EM. After twenty months only 53 inmates had been placed under EM. However, these low numbers did not prevent the further expansion of EM: in 2000 a National Centre for Electronic Monitoring was created and from then onwards EM would be possible throughout Belgium. The number of people under EM increased steadily till approximately 300 on a daily basis by 2002. A great deal of attention was being paid to supporting the controlled, sometimes referred to as the ‘Belgian model’: the search for a balance between non-human supervision through the use of monitoring technology on the one hand, and human support and follow-up by justice assistants on the other hand.

In reflections on EM in Belgium the period 2002–2006 is usually described as a period of relative stability: the number of people under EM oscillated around 300 on a daily basis and there were no significant changes in the regulatory framework. This would change from 2006 onwards: amidst political turmoil provoked by concerns over prison overcrowding the then Minister of Justice decided to play down the human factor in EM in order to speed up selection procedures and increase capacity. This had immediate results: the number of people under EM doubled almost overnight, till approximately 600 on a daily basis. Moreover, in that period EM was given a legal basis for the first time: the partial implementation of the Law of 17 May 2006 implied that from February 2007 onwards the newly created Sentence Implementation Courts would take decisions related to EM for prisoners with sentences of more than three year. In the other cases (prisoners with sentences of up to three years) the Minister of Justice continued (and, at the time of writing [September 2019], continues) to be in charge.

From 2009 onwards we observe again a remarkable increase in the number of people under EM: the numbers now rise till approximately 1000 per day. However, the most significant development would take place a couple of years later. Since 2008, the federal government had made fighting impunity and increasing the credibility of the execution of prison sentences a political priority. From 2012 onwards also EM moves to the center of this agenda. This would result in a remarkable transformation of EM for short prison sentences (up to 3 years): first in 2012 (with the introduction of home detention under EM) and then, in 2013, through the introduction of a new circular letter which further streamlined procedures and reduced (or, in some cases, abolished altogether) the role of the justice assistants. In reflections on these developments commentators referred to the advent of ‘ET light’ and ‘ET zero’ (Vander Beken 2013) or ‘Ryanair ET’ (Beyens and Roosen 2013). It goes without saying that such terms were used to deplore these changes and criticize the further reduction of human involvement in the supervision of people under EM. These changes, again, had an important quantitative impact: the number of people under EM increased steeply till over 1500.

However, in this period we not only observe a quantitative increase; we also see a qualitative diversification. From 1 January 2014 onwards (Law of 27 December 2012) EM became possible in the pretrial phase as an alternative for remand custody. Interestingly, the introduction of EM at this stage in the criminal justice process also resulted in the first uses of GPS technology in Belgium—even though the added value of using GPS technology in such cases came to be questioned: indeed, GPS technology makes it possible to track the movement of people but (unlike other categories of people under EM) suspects are not allowed to leave their home and are, therefore, de facto immobilized (Devresse 2014). From 1 May 2016 onwards (Law 7 February 2014) EM also came to be introduced at sentencing stage as an autonomous sanction. Moreover, since 1 September 2019 the use of EM technologies is also possible in Flanders in the new youth justice system—even though it is, at the time of writing (September 2019), unclear what kind of technology will be used. The Flemish Minister of Welfare, Public Health and Family had previously rejected the idea of using anklet bracelets for minors and had suggested that we needed to find more creative ways of using technology that can relate to the lifeworld of young people (Daems and Goossens 2019).

It should have become clear from this brief historical overview (for more information see e.g., Daems et al. 2009a; Vander Beken 2013; Beyens and Kaminski 2013; Devresse 2014; Vanhaelemeesch 2015; Beyens and Roosen 2016; Gudders 2019; Daems and Goossens 2019) why Belgium offers a rich case to study EM. Next to the remarkable increase in the number of people under EM (in 2017 around 1850 people were being monitored on a daily basis and there were 6592 new activations [Ferreira Marum 2018: 21]) the uses of EM have further diversified over time, from EM as an alternative for pre-trial detention, over EM at the stage of sentencing to the different uses of EM in the post-sentencing stage, for short and long-term prison sentences, and, more recently, also for other categories, such as mentally ill offenders and minors. Our exploration of the functions of EM in the next two chapters of this book will therefore start from the experience and debate in Belgium.

From the Functions of Imprisonment to the Functions of EM

In the preface and in the introduction to this chapter we already mentioned that the substance and form of this little book on EM is inspired by the work of Willem Hendrik Nagel (1910–1983). Nagel was a remarkable figure with an interesting biography. He was born in Zwolle, The Netherlands, in 1910 and studied law in Groningen. During World War II he joined the resistance and played an active role opposing the German agressor. In 1949 Nagel completed his Ph.D. research on crime in Oss. This also signalled his transition from law to criminology. Nagel joined the University of Leiden where he was professor in criminology and penology till his retirement in 1976. Interestingly, Nagel was also a prolific writer of poetry and non-fiction under his pseudonym J. B. Charles. He is well-known in The Netherlands (the Dutch Society of Criminology has named its tri-annual Ph.D. prize after him) but also internationally: Nagel received the Beccaria Medal from the Deutsche Kriminologische Gesellschaft (in 1965) and he was a Fellow of the American Society of Criminology and, in 1981, recipient of its Sellin Glueck Award (for more information, see e.g., Jasperse 1976; Schuyt 2010; Kelk 2017; van Veen 2013).

Here we are particularly interested in his 1977 book De funkties van de vrijheidstraf [The functions of imprisonment]. In this book Willem Nagel devotes numerous pages to the concept of the ‘function’ of punishment. In doing so, he explains why he prefers not to speak about the ‘purpose’ of punishment. To this end, Nagel takes advice from Robert Merton (1967) and his well-known distinction between manifest and latent functions. Manifest functions are recognised and people rely on how they work. Latent functions are ‘neither intended, nor recognized’. In 1936, Merton had already mentioned the ‘unanticipated consequences of purposive action’ (Merton 1936: 894; Nagel 1977: 19–20).

Ultimately, however, Nagel abandoned his intention to clearly emphasise the distinction between latent and manifest functions in his study: after all, the functions of punishment cannot always be distinguished very easily from each other and there is a lot of overlap (Nagel 1977: 21). Different functions can also ‘work together’, he added. In the study by Malinowski, when the people of the Trobriand Islands build a canoe, they are not only all involved together in the technical construction process, but they are also working on their interpersonal relationships. Moreover, we are not always equally steadfast: ‘We are the ones who, when penalising people, switch from one function to another that we wish to make use of’ (Nagel 1977: 26).

His concerns about the concept of ‘function’ led him to a pragmatic classification of the 57 punishment functions that he identified at the time: Nagel listed them alphabetically, from ‘Afkeer uitdrukken’ [Expressing aversion] to ‘Vorming’ [Education]. Nevertheless, the distinction between manifest and latent functions remained beneath the surface in his study. In addition, his comments on this were useful from a didactic point of view because it made it easier for Nagel to explain to the reader why he felt that the term ‘purpose’ was not appropriate:

It was mainly the latent and the dysfunctional functions that made me decide to replace the word “purpose” with the word “function” for the purpose of this text. Latent purposes – neither intended, nor recognized - are in fact impossible and dysfunctional purposes can only occur in the brain of a schizophrenic. (Nagel 1977: 23, italics in original)

In his discussion about the concept of the function, Nagel could have included a number of other authors. A law that fails to achieve its purpose can still be (latently) functional. That was the conclusion that the Norwegian sociologist of law Vilhelm Aubert (1971) tied in to his study, which has since become a classic, on the law on domestic workers. Aubert observed that a law, apparently aimed at improving the employment situation of young domestic workers in Norway, completely failed to achieve its objective. The new rules were hardly known and the law was useless: penalties were vague and an inspection mechanism that monitors and detects violations on its own initiative was lacking. The law therefore disregarded the fact that the maids were in a subordinate position and, in the event of conflicts with their employer, would rather opt to work elsewhere than to enforce their newly acquired rights through a long and unnerving legal process. Which (latent) function did the law fulfil?

The answer has to be found in the analysis of a function of the legislation, which has nothing to do with the process of transferring the standards and achieving compliance with those standards in a certain population group. This function relates to the need to reach compromises in the legislature. This makes legislation a means of resolving or mitigating group conflicts. (Aubert 1971: 61)

The law succeeded remarkably well in reconciling the reforming and conservative tendencies in the Norwegian parliament: one tendency could be proud of itself because the legal position of domestic workers had improved and there was, from then on, a threat of penalties; the other tendency was fortunate because the law was inefficient and would probably never be applied in practice: ‘The content of the law is entirely in favour of domestic workers, while the procedural rules protect housewives. The idea of law enforcement has been honoured, while in practice it remains ineffective’ (Aubert 1971: 66).

Such a (latent) functional analysis is not unknown in the study of punishment. Thomas Mathiesen (1974: 76–78), who is mentioned in the study by Nagel (1977: 14, 25, and 113), for example, identified four functions that have little to do with the official, manifest purposes of imprisonment: (1) the expurgatory function (the prison as a ‘vacuum cleaner’, which cleanses capitalist society of the unproductive groups it creates itself, by placing them behind bars); (2) the power-draining function (the prison that makes inmates powerless by locking them up and isolating them); (3) the diverting function (the prison that draws attention to petty thieves and other relatively harmless individuals and at the same time turns attention away from powerful groups in society, who perform acts that cause much more damage [such as environmental pollution and exploitation of workers], but are nevertheless let off the hook); and (4) the symbolic function (imprisonment goes hand in hand with stigmatisation and draws a sharp line between ‘them’ and ‘us’: ‘Those who are imprisoned are stigmatized as black. Thereby the rest of us, outside, may define ourselves as white. We may regard ourselves as all the better, more correct, more harmless’ [Mathiesen 1974: 78]).

Mathiesen stated that a pressure group such as the ‘Norwegian Association for Penal Reform’ (KROM), which spoke up for the rights and interests of prisoners and whose members included many (former) prisoners ‘disrupted’ each of these four functions: (1) KROM attempted to expose the ideological superstructure of prisons, in order to expose their true expurgatory function; (2) KROM tried to make detainees more powerful by forging links with forces in the outside world; (3) KROM explained who ended up behind bars—and who did not—and wanted to show as such that those who are really dangerous are usually found outside of prisons; and (4) the frequent contacts between KROM and the prisoners put pressure on the dividing line between ‘black’ and ‘white’. In 1990, Mathiesen added a fifth function: the action function (the prison is the most visible sanction in our society and thus serves as an observable sign that action is being taken):

By relying on the prison, by building prisons, by building more prisons, by passing legislation containing longer prison sentences, the actors on the political level of our own times thus obtain a method of showing that they act on crime as a category of behaviour, that they do something about it, that something is presumably being done about law and order …No other sanction fulfils this function as well. (Mathiesen 1990: 139)

Some go one step further and argue that the success of punishment lies in its failure. John Pratt, for example, suggested that the failure of alternative sanctions should be assigned a deeper function: ‘Rather than querying the extent to which it should be modified to bring it into line with the aims set out for it, the question is what purpose does this policy have?’ (Pratt 1986: 214). In short, according to Pratt, it was not so much a question of investigating how we could improve the alternatives so that they would ultimately fulfil the openly expressed expectations, but rather of investigating the ‘true’ function of the failed policy. Pratt was inspired here by Michel Foucault (1975) who, a decade earlier, had already wondered what function the failure of the modern prison, which had, since its inception, been used as a remedy for its own failure, actually serves.

It is not our intention to evaluate the above functions—let alone to rank them here. Throughout this little book we are inspired by Nagel’s open and somewhat pragmatic approach: ‘There is almost always a difference of opinion about the essence of the workings of a phenomenon … That is why I propose that we should pay attention to all the functions there seem to be’ (Nagel 1977: 19). In the case of Nagel, this resulted in an alphabetical listing of 57 functions of imprisonment. He devoted dozens of pages to a number of functions (in particular ‘Deterrence’ [Afschrikking] and ‘Retaliation’ [Vergelding]), but overall, a few pages were sufficient. For some functions, Nagel, on the other hand, limited his explanation to one or several lines (such as ‘Expressing aversion’ [Afkeer uitdrukken], ‘Terminating a criminal career’ [Beëindiging kriminele karriëre] and ‘Creating awareness of the limited nature of our freedom’ [Besef bijbrengen van de beperktheid van onze vrijheid]) and, in one case, he even left the stated function completely blank (‘Impeding physical life’ [Lichamelijk leven belemmeren]). A number of functions were also counted twice in his list: for ‘Work’ [Arbeid], the reader was referred to ‘Vocational training’ [Beroepsopleiding], for ‘Desocialisation’ [Desocialisering] to ‘Excommunication’ [Ekscommunikatie], for ‘Substituting the death penalty’ [Doodstraf substitueren] to ‘Substitution’ [Substitutie], for ‘Enculturation’ [Enculturation] to ‘Resocialisation’ [Resocialisatie], and so on. At first sight, this unbalanced treatment of the functions of imprisonment seems somewhat strange and puzzling. But perhaps this uneven presentation makes Nagel’s message even stronger: does this not—to a certain extent—reflect the way in which the debate on punishment is generally conducted?

Nagel also argued that we cannot speak about functions without thinking of the agents ‘… and not without distinguishing the subjective “motive” from the objective factor “the function”’ (Nagel 1977: 28). In this context, he noted the following:

The legislator has formed a value judgement and wants to realise that. The agents’ job is to take part in this realisation. But the agents’ eternal problem is that they may hold different value judgements from the legislator. In that case, they will have to bend or go. (Nagel 1977: 28)

However, Nagel subtly added to this:

Incidentally, there is hardly ever a problem with regard to the intention of sanctioning, because every Dutch government has always succeeded in not disclosing a fundamental government value judgement. Maybe because such a thing does not exist. Perhaps because the legislation is a compromise between holders of various value judgements. (Nagel 1977: 29)

In the introduction to his study, Nagel referred to what he called ‘the historical limitation of the custodial sentence’: ‘It may be assumed that punishment is timeless, we can see the prison come into existence’ (Nagel 1977: 13). He also referred to the Constitutio Criminalis Carolina of 1532, which only mentioned the custodial sentence once. EM, which only existed as an experimental technology when Nagel completed his study, is possibly even more ‘historically limited’ than the custodial sentence. If we can see the prison come into existence, then this is even more true for a penal innovation such as EM.

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Copyright information

© The Author(s) 2020

Authors and Affiliations

  1. 1.KU LeuvenLeuvenBelgium

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