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Electronic Monitoring, Privatization of Criminal Justice Administration, and the Law of Unanticipated Consequences

  • Prof. Malcolm Feeley, Center for the Study of Law & Society, UC Berkeley
Friday 18 November 2016
Academy Building
Rapenburg 73
2311 GJ Leiden
Faculteitskamer Rechtsgeleerdheid

ILS 2.o Presents: Leiden Socio-Legal Series 2016 - 2017

Electronic monitoring of offenders and pretrial releases was first adopted in the United States in the 1970s, and has expanded to the UK, Europe, and elsewhere since. From the outset it has been championed as an alternative to imprisonment. Indeed, some claim that electronic monitoring will radically transform and humanize the criminal process, that eventually it will be to prisons, what prisons were to the gallows. Perhaps. But to date there is little sign of this.  In Anglo-American countries, private contractors have a long history of touting reforms they claim will transform the criminal process. But rarely do they have their intended effects. For the past thirty years, contractors have advanced the claim that electronic monitoring (EM) is more effective and more efficient than imprisonment for vast numbers of offenders, and that it costs only a tiny fraction of cost. But the evidence suggests otherwise. Prof. Feeley examined the American experience involving private contractors and electronic monitoring in some detail, and contrasted it with the experience in England and Wales, and then with experience in Western Europe. With few exceptions, electronic monitoring programs in the US and England and Wales have been add-ons rather than alternatives. 

What holds for electronic monitoring holds for a number of other innovations in the criminal process. Private contractors producing products for the criminal justice system have a long history of claiming that their products are alternatives to imprisonment only to find that they have expanded the net of social control.  This is true for certain forms of prison, immigration detention centers, pretrial release programs, pretrial diversion programs, juvenile custodial centers, various “treatment” programs, and still other innovations. There is nothing inherent in private contacting that leads to this result. Yet all innovation in the Anglo-American criminal justice system, and in particularly innovations introduced by private contracts, appear to be subject to “the law of unanticipated reactions” that expands rather than contains the problem at hand. 

In his lecture, Prof. Feeley will draw from his recent socio-legal research on privatization and, based on this research, share with us his impression that the “privatization experience” in Western Europe is on the whole markedly different by relating this to variations in the roles of private contractors in and differences in the structures of “weak” and “strong” states, as well as states with common law and civil law traditions.

Malcolm Feeley holds the Claire Sanders Clements Dean’s Chair in Law (Berkeley Law) at UC Berkeley. Since 1984, he has been associated with the Jurisprudence and Social Policy Program in the School of Law at UC Berkeley and an affiliate of the Center for the Study of Law & Society. From 2005-2007 Feeley was the President of the Law & Society Association.

The author or editor of numerous books and articles on the judicial process and the criminal justice system, his 1979 book The Process is the Punishment received the ABA's Silver Gavel Award for best book in law. His most recent books are (with Edward Rubin) Judicial Policy Making and the Modern State (Cambridge); (with Terry Halliday and Lucien Karpik) Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Hart); and (with Ed Rubin) Federalism: Political Identity and Tragic Choice (Michigan).

Feeley has taught at NYU, Yale, where he was a Russell Sage Post-Doctoral Fellow in Law and the Behavioral Sciences, and Wisconsin, has been a fellow in the Guggenheim Criminal Justice Program and a fellow in the Law & Public Affairs Program at Princeton. He has also held several visiting positions abroad, including in Jerusalem, Cologne, Milan, Bologna, and Kobe. Feeley received his Ph.D. in Political Science in 1969 from the University of Minnesota. He is currently involved in a trio of historically oriented studies on the criminal process. The first of them, a comparative historical study of women accused of crime in the eighteenth century, is near completion. The others explore the importance of privatization in the development of the prison, and the origins and antecedents of plea bargaining. 

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