Electronic Monitoring and Penal Reform: Constructive Resistance in the Age of “Coercive Connectedness”

Published 15/03/2016
Type Article
Author(s) Mike Nellis
Corresponding Authors Mike Nellis, Emeritus Professor of Criminal and Community Justice, School of Law, University of Strathclyde

Alongside its strategy for privatising the probation service, the Ministry of Justice in the Conservative-led Coalition government (2010-2015) hatched a plan to upgrade from radio frequency electronic monitoring (EM) to a much larger scale, and solo use of GPS tracking. The plan failed, but was revealing nonetheless about the government’s policy intentions, to transform the community supervision of offenders more according to commercial-technological criteria than evidence-based penal ones. It is unclear if the new Conservative government, and new Minister of Justice, will retain the same misplaced confidence in an all GPS approach to EM and make a second, better finessed attempt at “disruptive innovation”. It is vital however that at this point in debate on the future of EM in England and Wales that probation interests and penal reform bodies abandon their traditional aloofness towards EM. They must recognise that it is merely an affordance, a customised coercive form, of the ubiquitous digital connectedness that characterises our age, and engage more actively in shaping the wise use of monitoring technology. Failure to do so will guarantee the continuing – but unwarranted – domination of rightwing, neoliberal narratives about the purpose, direction and scale of EM use. Other models, better aligned with community justice, already have prototypes in police-based Integrated Offender Management schemes, but are badly in need of professional and political champions.

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 specifications for the required bespoke tag, fell out with its first choice hardware provider and had to find a replacement, all of which caused delays. After a widely publicised “overcharging scandal”, the old two-contract system in which G4S and Serco delivered EM in the north and south of the country was replaced by a single national contract delivered by the new service provider, Capita (trading as Electronic Monitoring Services (EMS), who had actually signed up to use its expertise in business processes to steer the transition from RF to GPS, not to maintain the existing RF system (Nellis, 2016).

When Michael Gove became Justice Secretary in the new Conservative government in May 2015 several Grayling-bequeathed problems (e.g. on legal aid and the victim surcharge) required immediate resolution. EM, being less advanced, was less urgent, although a report by a second neoliberal think tank, Reform (Lockhart-Mirams et al., 2015) (which savaged the failure of the third contract to deliver) had re-injected momentum into the debate, and indeed offered Gove a way forward. Grayling’s grand plan was duly further inspected, the civil servant team leading on it refreshed, and further announcements deferred to mid-2016. Gove made an early bid to claim “penal reform” as natural Conservative Party territory, promising to make prisons more rehabilitative and visiting Texas (of all places) to see how they had done this. This had earned him a premature encomium from the Howard League, quickly tarnished when mere weeks later he simply echoed Grayling in repudiating the case for sentencing reform and reducing prisoner numbers as a necessary and desirable penal aim in England and Wales (Butt, 2016; Gentleman, 2016).

Prime Minister David Cameron picked up these themes in a high profile speech at Policy Exchange headquarters on 8th February 2016, reaffirming commitment to a fully operational, “ground-breaking” satellite tracking scheme by “the end of the parliament”, i.e. 2020 (Policy Exchange 2016). In the interim, GPS pilots were promised in several criminal justice settings; vague reference was made to sentences which would combine weekday tracking and weekend imprisonment. No mention was made of anticipated numbers, but the fact that Cameron’s speech took place under the auspices of Policy Exchange – a “modernising” organisation of which Michael Gove became the founding chair in 2002 – suggests that only modest alterations will be made to the transformational intentions of the first grand plan: after all, the likely future failings of the privatised probation service must still be distracted from and compensated for. Sure enough, later in the month, a junior justice minister backtracked on the search for a bespoke tag and promised a less complicated business model, whilst apparently remaining committed to an all-GPS strategy:

‘Developing bespoke tags has been challenging and it is now clear that it will be more appropriate to pursue our goals using off-the-shelf technology which is already available. That is why the Ministry of Justice will be terminating our contract to develop a bespoke tagging product with Steatite Limited and will shortly begin a new procurement process for proven tags already on the market … We will simplify our approach in order to meet the challenges of technical and business integration and continue to drive and monitor delivery from the other suppliers.’ (Raab, 2016)

Somewhat ironically, given the Ministry’s insistent emphasis on using EM to save taxpayers’ money, the £23 million that had been awarded to Steatite, a small British provider of rugged military equipment, in 2014 had been wasted. The original hardware supplier, Buddi (with whom the Ministry of Justice fell out over the technical specifications of the chimerical, bespoke tracking device), already had a perfectly serviceable GPS tag, and are likely to tender for any new contract. The fact that “Steatite’s share price fell 32% after the [ministerial] announcement” (The Guardian 25th February 2016) was a sharp reminder of the commercial investment that Grayling’s grand plan had encouraged, and indeed been premised upon.

The narrow parameters of English debate on EM
While a certain schadenfreude in probation circles at the collapse of Grayling’s grand GPS plan was inevitable, indeed delightful, the whole sorry affair has been a scandalous waste of time, resources and intelligence, which wider public debate and broader consultation with relevant agencies, including the interested think tanks, Probation Trusts and their successor CRCs, sentencers and (at least in principle) penal reform organisations, would probably have avoided. The stalling of the New World EM strategy at least creates a space for this kind of consultation to now take place, although that depends on whether – and how much – the Ministry of Justice is prepared to open up. Whether it does or not, there ought to be much wider and more thoughtful discussion of EM by all concerned with penal policy-making, not least because of the alarming scale on which Grayling (and Policy Exchange) were prepared to see it used, and the prospect of this same longer-term vision prevailing in the mind of the new Justice Secretary. Such consensus as came to exist in government that RF was obsolete and an all-GPS system was the way forward probably originated with no more than a dozen people, in and around Policy Exchange, and would never have become an official orthodoxy if more voices had regularly been contributing to EM debate.

Their intellectual quality notwithstanding, it is politically unfortunate that the two most high profile reports ever written on EM in England and Wales have both been produced by neoliberal think tanks, which between them colonised both policy and practice debates that ought to have been owned and articulated long before by established penal reform bodies, and by probation services themselves. Both Policy Exchange and Reform actually favoured the integration of EM with support services rather than the dominant standalone models designed into current legislation. Policy Exchange had (interestingly) not presumed that the probation service would be privatised and was open to local (or regional) statutory agencies – police and probation working together, as in IOM and MAPPA – delivering EM in partnership with tech providers of their own choice rather than those specified in a central government contract. Reform conceded that a centralised software programme would be necessary to ensure interoperability of EM across regions, into which a list of approved tech providers could tap, but broadly shared Policy Exchange’s localism, which had been a longstanding theme of Conservative (and previously Coalition) government policy.

Reform did nonetheless maintain Policy Exchange’s view that an upgrade to an all-GPS system made sense, a decision-based purely on commercial-technological logic, and on the allure of the “cool brand” that GPS represents, rather than any sound understanding of good penal practice (in which RF EM-curfews still have a legitimate place). It is this overriding, expansionist logic – the allure of excess – rather than the deployment of monitoring technologies as such, that most needs challenge from probation interests and penal reform bodies. Neither, however, has a good track record of informed engagement with EM issues, or any sense that it could or should – and must – be bent to penally progressive ends.

That said, fine pioneering work by Dick Whitfield (1997; 2001), the lead on EM in the now defunct Association of Chief Probation Officers (ACOP) probably left a legacy of pragmatic open-mindedness in some sections of the old (now defunct) Probation Service. Whitfield took the view that because the Home Office (the then lead Ministry) was determined to press on with EM despite widespread liberal opposition to it, probation could not effectively oppose it outright, but also saw genuine merit in integrated probation-EM schemes like those of Sweden. Service pragmatism toward EM, however, never went deep enough to mobilise any strategic engagement with EM, or to demand of the Home Office that it was rightfully probation service business which should be taken from the private sector and given to them. The service was, admittedly, under such relentless pressure from successive governments to re-structure in so many ways that this might never have been a realistic management priority, although equally, a visible and symbolic willingness to bring EM in-house would have made it less easy for governments to accuse probation, whether fairly or not, of a hidebound reluctance to modernise.

In any case, the National Association of Probation Officers would probably never have countenanced such a strategic move. NAPO was never wrong to periodically highlight the practice failings of private sector operatives, the sometimes negative consequences of standalone EM-curfews for offenders, and the cost of the contracts. It persistently failed, however, to disentangle the idea of EM as a potentially useful supervision tool from its delivery by a despised profit-seeking provider, despite some evidence that offenders and families themselves might be favourably disposed to being monitored. NAPO unreflectively accepted the self-serving, one-dimensional punitive narrative in which the Home Office framed standalone EM-curfews, always responding oppositionally, never making the effort to imagine creative uses of a 21st century technology that could be aligned with a modern probation ethos and genuinely used to challenge the enduring overuse of imprisonment. NAPO all too often spoke as if it believed that EM could and should be stripped from the penal landscape, fearing only dystopian outcomes (which EM technologies undoubtedly have) and never realising that resistance to something so embedded in the wider digital technoculture could only take the form of reclaiming and reshaping, rather than rejecting outright.

The major British penal reform groups, the Prison Reform Trust, and the Howard League for Penal Reform, have seemingly accepted EM as a penal fixture, but similarly seen no creative potential in it. They have acknowledged some value in early release schemes (Home Detention Curfew), but more often contended that EM makes matters worse for offenders, especially juveniles (which, quite possibly, present usage does), and made no effort to learn from both mainland European practice and Council of Europe (2014) “soft law” on EM. They have not attempted to challenge or change official discourse on EM – or to create competing discourses on it. Like NAPO, their unwillingness to engage in constructive resistance has, however unintentionally, actually helped neoliberal arguments to become hegemonic in this field of penal policy.

There are both distant and immediate reasons behind their position. Humanistic social welfare traditions in Britain, in which both probation and penal reform bodies have deep roots, have always been wary of “technical fixes” being (mis)used to engineer behavioural change or social justice, especially if they are seen as likely to jeopardise or take resources from person-centred approaches. With EM technologies, this risk was undoubtedly there from the start, not intrinsic to the devices as such but associated with the dark desires – subordinating social work to surveillance and punishment, or dispensing with it altogether – to which some political and commercial interests would (still) see them put. It simply does not follow, however, that monitoring technology is never useful, in some forms, in some degree, and that it can never be used to serve humanistic ends. Technology is, to be sure, never simply a neutral tool to be deployed in good or bad ways. Any decision to replace or augment human activity with technology always has a moral dimension in itself – and may sometimes, of course, actually be ethically defensible (see Heikkero, 2012).

Academic penological discourses, on which probation and penal reformers draw and to which they contribute in return, have not helped much to clarify or remedy these issues, because applied penology’s own engagement with the broader issue of socio-technical – and particularly “digital” – change and its varied penal affordances has been too few and far between to filter down into in practitioner debates. The international “what works” movement marginalised EM because prevailing punitive models of it seemed not to accord with the cognitive behavioural understanding of how offenders change for the better – only Bonta, Rooney J and Wallace-Capretta (2000) found a small, valuable role for it. The international (and especially British) “desistance” movement envisaged no role for EM in creating human or social capital for reintegrating offenders – until Hucklesby’s (2008) pioneering research showed exactly how it could do that.

The largely North American, and intensely humanistic, “community justice” movement has understandably found it hard to accommodate the severely punitive uses to which the US has put GPS with sex offenders (and others), or to see purely cost-driven post-release uses of it as a legitimate means of decreasing the spiraling costs of imprisonment. One of community justice’s most persuasive advocates, Todd Clear (1994) has invariably cast EM in the USA as a form of “penal harm”, the wrong sort of justice to invest in. Ex-offender James Kilgore’s (2015) articulation of the “voice of the monitored” gives no reason to contradict this. But Kilgore at least recognises that the tilt of many, if not all, American models of EM-use are a contingent product of a callous penal culture, and that some European approaches to EM may well have more legitimacy.

Victims, especially domestic violence victims have mixed, but not wholly negative, views on the viability of GPS tracking for the accused at the pre-trial stage, whilst incidental research in this particular field of practice has also shown that variations in local “agency culture” in the US can affect the sensitivity (or otherwise) with which EM is deployed and the way it impacts on defendants (Erez et al., 2012; Ibarra, Gur & Erez, 2014). This is very important research, more so than straightforward studies of effectiveness and recidivism, because it clearly highlights the way in which operational processes rather than the technology itself affects the impacts and outcomes of monitoring. While EM is indubitably a form of control, punitiveness (extreme or otherwise) is not inherent in the devices or the system architecture: there is no pre-determined “one way” in which an EM-based regime must be implemented or enforced. Legal, policy and practice frameworks can be designed to use EM supportively or punitively, monitoring regimes can be calibrated in nuanced, even personalised ways, and their intensity tapered off as completion dates approach, while breach ought always to allow an element of human judgement. But a key question is, who gets to design the regimes? And whose tech is it anyway?

EM: Gathering evidence and gaining experience
Internationally, it can no longer be said that we lack viable evidence of EM’s effectiveness, in terms of reducing recidivism, reducing prison use and saving costs, but precisely because of the very variable ways in which it is used at different points in the criminal justice process, in different jurisdictions, means that policy and practice lessons are not easy to transfer from one country to another. None of the available evidence is spectacular, and it still begs the question of whether all the wise and sensible permutations of EM-use have yet been tried, let alone evaluated. It is also the case that in the current political and economic climate financial and ideological factors are driving policymakers to augment or replace “people-centred” work with monitoring technology. Where “people-centred” means supporting and caring this invariably causes alarm, but what if face-to-face, “people-centred” practice was oppressive, and monitoring was (relatively) liberating? Would this be an ethically acceptable use of new supervision technology?

A long awaited Campbell Collaboration meta-analysis of EM’s effectiveness seems to have stalled, presumably because there are still too few random controlled trials of EM of the kind the Collaboration favours. The Scottish Government recently commissioned a review of the current EM evidence-base as part of its own rethinking of the future of EM – a vastly more deliberative and consultative exercise compared to the lofty, secretive approach of the Ministry of Justice in England – which stands as state-of-the-art thinking for any country considering taking EM forward (Nellis 2016a). It concluded that there is a case for cautious, contextualised experimentation with all forms of EM, including GPS and transdermal alcohol monitoring, but that rehabilitative outcomes are only feasible when EM is properly integrated with other supportive measures (Graham & McIvor, 2015).

Hucklesby et al.’s (2016) European Union-funded research on “creativity and effectiveness in the use of EM”, comparing policy and practice in Belgium, Germany, the Netherlands, England and Wales and Scotland deserves wide dissemination. Wisely, the Ministry of Justice had signed up to participate in this, but the researchers empirically grounded conclusions give scant comfort to the Policy Exchange thinking that went into Grayling’s grand plan, least of all for an all-GPS model. “Radio frequency and GPS technologies have complimentary and distinct advantages and uses”, they writes, adding, “private sector involvement in EM is associated with less integration into broader criminal justice structures”, and concluding with “the greater the involvement of probation in EM the more discretionary decision-making takes place” (Hucklesby et al., 2016:1). These are undoubtedly very relevant messages for the Ministry of Justice, but they, and many other sophisticated, comparatively informed understandings of EM need, even more, to become the common property of all the actors who should be debating its future in England and Wales.

Sanguinely, Hucklesby at al. note (across all the jurisdictions studied), “creative use of EM is limited with [only] isolated examples of innovative practices”. Ironically, in England and Wales, it is the maverick police-probation IOM schemes, for example, set up since 2010 (first in Hertfordshire) by practitioners outwith the Ministry of Justice EM contract, in conjunction with GPS manufacturer Buddi, that have been the most striking examples of such creativity. They have used GPS with persistent and prolific offenders who volunteer to prove their willingness to desist by opting for 24/7 real-time tracking, and some personalised support, instead of the intrusive, intimidating police contact that had hitherto controlled them, but which simultaneously undermined and devalued their efforts to desist. Being “people-centred” (in a harsh way) it was also both labour intensive and costly to the police. An evaluation of the Cardiff scheme has found that some offenders welcomed, valued and benefitted from the approach (Jones & Hudson, 2016).

The voluntaristic element, counter-intuitive to people who can only imagine GPS tracking as a high tariff intervention for high-risk offenders, gives it more of an affinity with social work approaches to offenders (or indeed “community justice”) than any other use of EM in Britain. Without precedents from elsewhere, without a power of legal compulsion (or threat of breach), the staff in the IOM schemes have had to work out on their own how GPS can be operationalised to serve desistance purposes, how to motivate offenders to keep wearing it, how to persuade desisting offenders to eventually give up the anklet rather than become dependent on it, how to work with the tech manufacturer to create useful mapping software and back-up services. Experiential learning of this kind, by frontline practitioners, was never possible with top down, fixed models of EM imposed by the Ministry of Justice, and delivered by a separate agency.

Nonetheless, as ever with EM, there are dangers. The various schemes are somewhat unregulated (police discretion has been used both well and badly, probation involvement is variable), and, as the desistance-minded police officers who began them readily admit, there is a real danger that other police managers will become more enamoured of the intelligence-gathering potential of GPS (applying data analytics to offender’s trails) than its capacity to sustain offenders’ motivation to desist. Reform actually supports this, and with some high-risk offenders it might well help, but there is no case for developing this digital capability across the board, routinely, with all offenders. This goes to the heart of how EM technologies might be shaped to suit practice ideals; the full capabilities of a technology do not have to be used just because they can be, if a more constrained use of it is easier to align with caring and supportive practice. Commercial, technocentrically-inclined people often find this hard to understand and have become adept at discursively framing every capability as penally indispensable. Probation and penal reform interests have negligible experience of engaging in these kinds of practice debates, and are easily outclassed in arguments about technological capabilities. Developing their expertise in this is long overdue.

There are paradoxes too. Chris Miller (2012; 2014), the Assistant Chief Constable in Hertfordshire who rightly championed the use of GPS in the IOM scheme, had a significant impact on the Policy Exchange report, but his belief that these small, successful local projects could and should be scaled up to a national model of bulk monitoring (and dispense with “obsolete” RF EM) was an extrapolation way too far. Sara Murray, the founder and CEO of Buddi, was similarly influential with Policy Exchange, based on an innovative project using compulsory GPS tracking of patients/offenders on home leave from an NHS secure hospital (Hearn, 2013), as well as many of the voluntary IOM schemes. But her company only sells GPS products (for telecare and telehealth as well as criminal justice markets) and so she has had no commercial interest in defending RF EM, or seeing it survive, whatever sound penal reasons there may be for continuing to use it as well.

In developing any sort of digital strategy, in any sphere, the tech experts always need to be at the table, but in respect of EM so too do penal reformers, open to new thinking, but knowledgeable and confident enough to rein in the more technophiliac aspirations of the sellers and manufacturers. They need to be able to specify what technology they want, and what they don’t, and why, and what an acceptable scale of use would be. Pragmatic penal politics in a digital, connected age simply requires this, and while EM is never likely to become the most important preoccupation of humanistic penal reformers it can no longer be left off their agenda, and may, in fact, if they can shape the way it is used, help advance it.

Understanding EM as “coercive connectedness”
Contrary to the way probation and penal reform bodies have seen it, EM has never been a penal-thing-in-itself that could simply be said yes or no to on ethical or empirical grounds (important as it is to make both types of argument). Thinking of it merely as a penal technique that might or might not “add value” has obscured both its embeddedness in information and communication technology (ICT) more generally and the broader commercial and technocultural sources of its continuing global momentum. This is why, in England and Wales, probation and penal reform bodies have all too often underestimated the appeal and staying power of EM, mistakenly believing that it can be wished away, loftily disparaged and left to fail because it won’t be particularly “effective” at anything it is used for. Lacking familiarity with the well-established academic and policy literature on “the social shaping of technology” (Mackenzie & Wajcman, 1999), probation and penal reform signally failed to grasp the importance of reconfiguring EM as a safe, legitimate application of digital technology in the struggle to create safe communities and reduce prison numbers.

To understand EM’s past, present and future trajectories it is vital to understand it simultaneously as both a socio-technical/digital intervention, and as a penal one. Viable, scalable forms of EM were only realisable by governments and commercial organisations as an affordance of the emerging digital communication infrastructure in the 1990s, and the convivial overlay of e-connectedness that it began infusing into all spheres of social (including everyday) life. EM as a penal technique could not have come into being as a distinct penal measure without the ecology of systems, businesses, networks and expertise associated with digital connectedness more broadly. Commonplace forms of hardware and software were easily customised into a means of monitoring presence or absence from a particular place, and thereby restricting an offender’s movements. The American pioneers of EM had always imagined it as a form of tracking – “mobility monitoring” rather than mere “presence monitoring” – a development that was easily realised by the commercialisation and refinement of the US government’s Global Position System (GPS) satellites, a once exclusively military project which became a civic utility (Nellis, 2013; Milner, 2016). In a very basic sense, EM was always – and remains – a form of “coercive connectedness” embedded in the much denser matrix of voluntary, reciprocal, collaborative and contractual connectedness that digitisation has enabled, through an ever greater array of devices and platforms, and reliant on the same, ever upgradeable, ever more accurate, real-time pinpointing and tracking technologies.

Neoliberal capitalism being what it is, for a range of security, technology and business processing companies, old and new, there was some inevitability about specific digital affordances coming to be seen as a market opportunity in the “penal fields” of many countries. Governments, sometimes keen to foster their tech sectors, sometimes to reduce the costliness of prison systems (and in England in particular to outsource public services) were receptive to arguments that “electronic monitoring” would be a cost-efficient and self-consciously modern form of punishment and control over offenders, an aspect of e-governance more generally (and in England of a nascent “digital by default” approach to public service provision (Nellis, 2016b). Within “penal fields”, and also in policing, EM has also played into latent panoptic impulses, but always alongside economic arguments which have gained in force as austerity policies and “doing more for less” (often using automation) has become institutionalised in public policy. Some degree of contestation and resistance has occurred in every country whose governments have considered EM but was never likely to prevail for long, given the sheer “technological momentum” (Hughes, 1994) of the burgeoning digital world, and its manifest ubiquity and normalisation in all aspects of existence.

Understanding EM as “disruptive innovation”
In the contemporary “landscapes” of neoliberal capitalism there are business, technical and political elites and entrepreneurs for whom constant socio-technical innovation is now a commercial and governmental norm, an existential condition (Goldman & Papson, 2011). In their eyes, a cool, convivial, efficient, profitable – and high tech – corporate future beckons irresistibly. With such an imaginary, developing digital technology in a specifically penal context – and when necessary transforming aspects of penality in the process – simply does not seem strange. Digital technology, suitably pushed, seductively marketed, has a demonstrable capacity for disruption and countless industries and occupations (think banks, libraries, taxis), as well as specific working practices, have already been modified, transformed or discarded because of it, with no obvious endpoint in sight (Susskind and Susskind 2015). To corporate futurists scanning the world’s “penal fields” it is not only humanistic forms of probation supervision that already seem unmodern; even the “first generation” of RF EM looks outdated, and in manifest need of an upgrade, simply because this is what happens, what profitability requires, as a matter of course – sometimes incrementally, sometimes more convulsively – in the wider digital world.

At root, corporate futurism (one version of a neoliberal utopia) animated Grayling’s vision for EM, the significance of which – the sheer extent to which familiar penal anchor points were to be left behind – has still not been fully appreciated. Between them, albeit with different understandings of the kind of market needed to deliver services, Policy Exchange and Grayling were bidding to make EM – in the form of an all-GPS system – into the “disruptive innovation” that some of its early champions had always believed and hoped it could be, albeit (for them) on the radical understanding that it would be imprisonment which would be lessened as a consequence of disruption.3 Silicon Valley has popularised the concept and practice of “disruptive innovation”, Christiansen, Raynor and Macdonald (2015) had theorised it and the very name “New World” speaks to the Ministry of Justice’s ambition in this respect. In fact, it has been probation in England and Wales, as both occupation and craft, rather than imprisonment, that has been most disrupted by official aspirations to bulk GPS monitoring, becoming less important, more subordinate, something to be downgraded, deprofessionalised and “sold off”. Available evidence did not in fact suggest that the old probation service was failing – official targets, at least, were being met, but it was dispensed with anyway because, in corporatist futurist terms, it was increasingly out of time.

Significantly, in respect of his all-GPS strategy, Grayling commissioned no evidence-base to underpin it because it is in the nature of disruptive innovators to believe that what they intend is without precedent, and that by definition no prior evidence exists which would indicate how to eclipse incumbent interests and displace established practices. Strategy is all: to such thinkers, a “business model” (although in this instance, Grayling selected a bad one) is more important than a “(penal) evidence-base”, because it was not primarily penal criteria (as traditionally understood) that were being used to shape the future. The National Audit Office and the Committee on Public Accounts eventually took the Ministry of Justice to task for neglecting empirical evidence (Hodge, 2015), but, distracted by the G4S/Serco overcharging scandal, they themselves neglected to critique the dubious new business model, and its own startlingly high costs, adopted by Grayling for the third contract.

Hucklesby et al. (2016:1) observe in the five jurisdictions they studied that “the extent to which the size of the prison population is viewed as problematic is an important determinant of EM use”. In general this is true, and even in England and Wales periodic plans to expand RF EM use have indeed been rhetorically connected to reducing prison use (without ever accomplishing this on a significant scale). But Grayling always eschewed this, as Gove has also done; having one of the highest rates of imprisonment in Europe is not actually problematic to them, but they commit to and invest in EM nonetheless. In England and Wales, imprisonment was not be touched despite the large scale on which GPS use was being envisioned: it would be forms of offender management in the community that would be transformed. This represents the kind of “penal excess” in the use of EM that Richard Jones (2013) has warned against.

The Ministry of Justice’s failure to involve the new Community Rehabilitation Companies as participants in the New World EM service was nonetheless anomalous, a flaw in the disruption strategy. Several of the companies involved are American-owned, and doubtless know that the US evidence of significant crime suppression effects whilst on EM (if not after EM) might help with the payment by results approach they are required to take (Padgett, Bales & Blomberg, 2006). Since coming into being the CRCs have had immense administrative and logistical problems to deal with and EM could not have been one of their priorities, but down the line, as they decide what sort of staff they wish to employ, and whether skilled probation officers are among them, it may well become more important to them, not just to the Ministry of Justice. Some indication of the future status of probation officers in respect of new technological initiatives might be inferred from the official announcement of the London-wide expansion of the Mayor’s Office for Policing and Crime (MOPAC) Alcohol Monitoring Service pilots: the role of the London CRC probation staff in making the pilots a success was played down, as if they had been merely contingent, non-essential contributors (personal communication David Raho, 25th February 2016).

The “New World” all-GPS EM strategy devised by the Conservative-led Coalition Government, informed by Policy Exchange and led by Chris Grayling was a commercial, technological and penal fiasco and there is nothing to be regretted about its passing – if indeed it has passed. The fact of its failure, in this iteration at least, is less important than what was revealed by the plan itself. That said, its failure serves to confirm Nicola Lacey’s (2013) argument that abstract, reified visions of neoliberal practice can’t be implemented without viable institutional structures and networks which are capable of carrying them. The Ministry of Justice will doubtless work to improve these structures and networks; whether it will revive or revise the original vision of GPS, or something more modest and sensible, remains to be seen.

Michael Gove, the present Justice Minister, is no less neoliberal in outlook than his predecessor, but may have more talent for finessing the implementation process. Like Grayling, he is a committed marketiser, an ambitious disrupter of public sector provision, a confirmed Brexiteer unlikely to be receptive to cautious European models of EM, and opposed to strategic reductions in the size of the prison population (Gentleman, 2016). Marshalling an evidence-base of some sorts, consulting more with relevant interests and establishing GPS pilots are all sensible in themselves, as well as means by which the Ministry of Justice can regain lost legitimacy in this area of policy-making. Nonetheless, any sign of continuing commitment to an all-GPS system or the bulk monitoring of 75,000 offenders per day as envisaged by Policy Exchange will be evidence that commercial-technological factors rather than penal factors are still driving the vision and implementation strategy, and must be contested.

But more than issue-specific contestation is needed: the bigger picture must be appreciated. The temporary implementation hiatus in EM policy creates an opportunity for penal reform bodies to reconsider their position on EM in England and Wales, and become more than simply reactive to it. Such groups need to engage in constructive resistance, shaping not rejecting, on the understanding that EM is now such an integral element in a digitally connected world that it is neither going away nor growing less important, and that unless they attempt to shift the centre of gravity in public and professional debate, policy will continue to be dominated by untrammelled right wing interests. Historically, and from experience, penal reformers know, more than most, that the only thing necessary for the triumph of evil is for good people to do nothing, but for want of an informed understanding of the digital technoculture in which EM is rooted, they have come close to letting this happen.

Penal reformers need to enter the EM debate with (to use a somewhat passé term) a “hacker ethic”3 in mind, a sense that EM technologies are not solely owned by government, that they can be appropriated and deployed to better, more creative ends than those who control the dominant narratives about them have thus far been prepared to concede. It is precisely because the various modalities of EM can – among other things – add a flexible element of control to community supervision that it is capable of enabling viable alternatives to custody – something well understood by most European probation services – and the fact that Gove has already decided not to exploit this strategic aspect of it is an own goal on his part, and an open one for penal reformers.

The challenge for probation interests and penal reform bodies in England is pressing, because as Hucklesby et al. (2016) have intuited, in relation to Europe as a whole, a new surge of enthusiasm for EM seems imminent, indeed already underway, in which it is likely that the Ministry of Justice will wish to remain at the fore. Hucklesby (2016) herself has quite aptly likened this surge of interest to the opening of Pandora’s Box, out of which nothing good comes, but a more commercial, socio-technical account can be given of what lies behind it. Over the past two years the Bank of America, the Bank of England, the World Economic Forum and sundry economic commentators have been forecasting a vast expansion of automation and robotics in global businesses which will have far-reaching consequences for many middle class occupations, including legal and welfare professions, particularly those whose working practices and processes have become so standardised that they can readily be replicated (and improved) by smart machines (Susskind & Susskind, 2015; Treanor, 2016). One aspect of this upcoming tech transformation is the so- called “internet of things”, which will further normalise the idea of ubiquitous environmental sensors constantly feeding real-time data to monitoring centres for analysis and profiling, both aggregated and individualised, and it is inevitable, given past trends in the adoption of technology, that law enforcement will seek in some way or other to harness its potential.

GPS tracking devices are essentially internet-linked mobile sensors, and many aspects of EM systems are already automated: the larger the system the more algorithmic processing of events is required. While there is no simple, mechanistic relationship between “the rise of the robots” (Ford, 2015) and “the internet of things” (Greengard, 2015) and EM as such, they both give further symbolic and practical credence to the value of “non-human” approaches to increasing efficiency in and control over a range of business, administrative and governmental processes. Coupled with that, many EM manufacturers are nested in and overlap with the same digital ecosystems and research and investment networks, and the same corporate futurist imaginaries from which automation, robotics and remote sensing are arising, and will be emboldened by the same trends, which modernising, efficiency-seeking governments will facilitate and align with in greater or lesser degree.

It is tempting, even plausible, in retrospect, to see the English Ministry of Justice’s efforts at simultaneously upgrading EM and downgrading probation from 2012 onwards as an early, localised expression of these broader global developments, a step towards “non-human” (or less human) offender management. Knowledge of these developments, and the momentum which will flow from them into and through the “penal field”, necessarily raises the stakes in debate on EM, because the dismal spectre of “the probation officer” going the same way as the lamplighter in the age of electrification looms even larger. Soft “people skills” might well survive in future work with offenders – because empathy can’t be automated – but not (unless it is fought for) as the basis of organised professional employment, more as lower status work such as part-time mentoring. Thus, all future critical engagement with EM in Britain, indeed in Europe, must now be grounded in a more informed understanding of the affordances of the digital world, and of the potential and limits of “technological solutionism” more generally (Morozov, 2013). The focus must be on constructively resisting excess in EM – and using it wisely – rather than a wishful, anachronistic belief that it is still simply a discrete and peripheral intervention, easily derided and readily contained, and without capacity to disrupt existing penal arrangements – especially probation services.


Bonta, J., Wallace-Capretta, S. and Rooney J. (2000) Can electronic monitoring make a difference? An evaluation of three Canadian programs, Crime & Delinquency, 46:61-75.
Butt, E. (2016) To Reform Prisons We Must Reform Sentencing. The Howard (newsletter of the Howard League) 2016:1-7.
Christiansen, C. M., Raynor, M. and Macdonald, R. (2015) What is Disruptive Innovation? Harvard Business Review, December 2015:44-53.
Clear, T. (1994) Harm in American Penology: offenders, victims and their communities. New York: State University of New York Press.
Council of Europe (2014) Recommendation CM/Rec(2014)4 of the Committee of Ministers to member States on electronic monitoring. Adopted by the Committee of Ministers on 19th February 2014. Strasbourg: Council of Europe.
Erez, E., Ibarra, P. R., Bales, W. and Gur, O. M. (2012) GPS monitoring technologies and domestic violence: An evaluation study. A report submitted to the National Institute of Justice, Washington D.C.
Ford, M. (2015) The Rise of the Robots: technology and the threat of mass unemployment. London: Oneworld.
Geohegan, R. (2012) Future of Corrections: exploring the use of electronic monitoring. London: Policy Exchange.
Gentleman, A. (2016) ‘Gove: I can reform prisons without cutting inmate numbers’, The Guardian, 1st March 2016.
Goldman, R. and Papson, S. (2011) Landscapes of Capital: representing time, space and globalisation in corporate advertising. London: Pluto.
Graham, H. and McIvor, G. (2015) Scottish and International Review of the Use of Electronic Monitoring. Part 1- Purposes, Uses and Impact of Electronic Monitoring: Part 2 – Comparing Electronic Monitoring Technologies. Edinburgh: Scottish Government.
Greengard, S. (2015) The Internet of Things. Cambridge. Mass: Massachussetts Institute of technology.
Harcourt, B. (2015) Exposed: desire and disobedience in the digital age. Cambridge, Mass: Harvard University Press.
Hearn, D. (2013) Tracking Patients On Leave from a Secure Setting, Mental Health Practice, 16(6):17-21.
Heikkero, T. (2012) Ethics in Technology: a philosophical study. Plymouth: Lexington.
Himanen, P. (2001) The Hacker Ethic and the Spirit of the Information Age. London: Secker and Warburg.
Hodge, M. (2015) Letter from Committee of Public Accounts to the National Association of Probation Officers, 23rd February 2015.
Hucklesby, A. (2008) Vehicles of Desistance? The impact of electronically monitored curfew orders, Criminology and Criminal Justice, 8:51-71.
Hucklesby, A. (2016) Electronic Monitoring in England and Wales. Paper presented at Creativity and Effectiveness in EM conference. London 17th March 2016
Hucklesby, A. and Holdsworth, E. (2016) Electronic Monitoring in England and Wales: a briefing paper. Leeds: University of Leeds.
Hucklesby, A., Beyens, K., Boone, M., Dunkel, F., McIvor, G. and Graham, H. (2016) Creativity and effectiveness in the use of electronic monitoring: a case study of five European jurisdictions: a briefing paper. Leeds: University of Leeds.
Hughes, T. (1994) ‘Technological Momentum’, in M. R. Smith and L. Marx (Eds.) Does Technology Drive History? The dilemma of technological determinism. Cambridge, Mass: The MIT Press.
Ibarra, P. R., Gur, O. M., and Erez, E. (2014) Surveillance as casework: Supervising domestic violence defendants with GPS technology, Crime, Law, and Social Change, 62(4): 417-444.
Jones, T. and Hudson, K. (2016) Satellite Tracking of Offenders and Integrated Offender Management: A Local Case Study, Howard Journal for Penal Reform.
Jones, R. (2013) The Electronic Monitoring of Offenders: penal moderation or penal excess? Crime, Law, and Social Change, 62(4).
Kilgore, J. (2015) Electronic Monitoring is Not the Answer” critical reflections on a flawed alternative. Oakland, California: The Centre for Media Justice.
Lacey, N. (2013) ‘Punishment, (Neo)Liberalism and Social Democracy’, in R. Sparks and J. Simon (Eds.) The Sage Handbook of Punishment and Society. London: Sage.
Lockhart-Mirams, G., Pickles, C. and Crowhurst, E. (2015) Cutting Crime: the role of tagging in offender management. London: Reform.
Mackenzie, D. and Wajcman, J. (1999) The Social Shaping of Technology (2nd edition). Maidenhead: Open University Press.
Mair, G. and Nellis, M. (2013) ‘Parallel Tracks: probation and electronic monitoring in England, Wales and Scotland’, in M. Nellis, K. Beyens and D. Kaminski (Eds.) Electronically Monitored Punishment: international and critical perspectives. London: Routledge.
Miller, C. (2012) ‘Foreword’, in R. Geohegan Future of Corrections: exploring the use of electronic monitoring. London: Policy Exchange.
Miller, C. (2014) ‘Interview’, in A. Shelupanov (Ed.) Streetcraft: stories from the front line of criminal justice. London: The Centre for Justice Innovation.
Milner, G. (2016) Pinpoint: How GPS is Changing Technology, Culture, and Our Brains. London: Granta Books.
Ministry of Justice (2012) Punishment and Reform: effective community sentences. London: Ministry of Justice.
Ministry of Justice (2013) Transforming Rehabilitation: a revolution in the way we manage offenders. London: The Stationary Office.
Morozov, E. (2013) To Save Everything, Click Here: the folly of technological solutionism. New York: Public Affairs.
Nellis, M. (2013) Techno-utopia, Science fiction and Penal Innovation; the case of electronic monitoring, in M. Malloch and W. Munro (Eds.) Crime, Critique and Utopia: Themes for a Critical Criminology. London: Palgrave MacMillan.
Nellis, M. (2014) Upgrading EM, Downgrading Probation: reconfiguring offender management in England and Wales, European Journal of Probation, 6(2): 169-191
Nellis, M. (2016a) ‘The Strategic Nelglect of Electronic Monitoring in Scotland’, in H. Croal, G. Mooney and M. Munro (Eds.) Criminal, Community and Justice in Scotland. London: Routledge.
Nellis, M. (2016b) ‘”Digital by Default”? Electronic Monitoring as E-Governance and “Commercial Common Sense” in England and Wales’, in A. Hucklesby and S. Lister (Eds.) The Private Sector and Criminal Justice. London: Palgrave MacMillan.
Padgett, K. G., Bales, W. D. and Blomberg, T. G. (2006) Under surveillance: an empirical test of the effectiveness and consequences of electronic monitoring, Criminology and Public Policy, 5(1):61-92.
Page, J. (2013) ‘Punishment and the Penal Field’, in R. Sparks and J. Simon (Eds.) The Sage Handbook of Punishment and Society. London: Sage.
Paterson, C. (2007) Commercial Crime Control and The Electronic Monitoring of Offenders in England and Wales, Social Justice, 34(3-4):98-110.
Policy Exchange (2016) Speech by David Cameron on Penal Reform, 8th February 2016. London: Policy Exchange.
Raab, D. (2016) Written Ministerial Statement made by the Parliamentary Under Secretary of State for Justice, 25th February 2016. London: House of Commons.
Susskind, R. and Susskind, D. (2015) The Future of the Professions: how technology will transform the work of human aspects. Oxford: Oxford University Press.
Treanor, J. (2016) ‘Fourth Industrial Revolution set to benefit richest, UBS report says’, The Guardian, 19th January 2016.
Whitfield, D. (1997) Tackling the Tag: the electronic monitoring of offenders. Winchester: Waterside Press.
Whitfield, D. (2001) The Magic Bracelet: offender supervision and technology. Winchester: Waterside Press.


1. Two representatives of potential bidders for the third contract, initially uncertain of its commercial viability, separately told me that in private meetings at the Ministry of Justice in 2013 officials tantalized them with a figure of “about 75,000 per day” as the anticipated, eventual size of the GPS market. Tipped off by Napo, an associate business editor at The Independent phoned the Ministry of Justice media office to confirm the 75,000 per day figure, which they did – only to withdraw it a day later. I wrote “Upgrading EM, Downgrading Probation: reconfiguring offender management in England and Wales” (Nellis 2015) specifically to expose and critique the Ministry of Justice’s ambitions for GPS, once I had found out what they were. I am grateful to Ioan Durnescu, the editor of the European Journal of Probation, for publishing it so quickly. 2. Both US pioneers of prototypical thinking on EM in the 1960s and 70s, the Schwitzgebel brothers and Joseph Mayer, were confident that monitoring technology would inexorably – and massively – reduce the need for imprisonment in the future. In England, journalist and EM champion Tom Stacey believed the same. Despite all experience to the contrary, such techno-utopianism dies hard. It misunderstands the enduring symbolic and material power of physical imprisonment. Only if monitoring technology and supportive supervision regimes are fused with sustained political will and operationalised by appropriate institutions might there be such a transformative effect on penal practice, and with good or ill results (or both), depending on how the technology was used (see Nellis, 2013). 3. The term “hacker” did not originally denote activists who illicitly accessed and exposed computerised data, but activists who would put the burgeoning affordances of the coming digital society to creative and democratic use, not least because, without informed political intervention from below, the new technologies could so obviously be used to bolster corporate and governmental authority. The term “hacker ethic”, which has some affinity with the “community justice” emphasis on action-from-below, was shortlived, but the sensibility lives on and, in respect of EM, can usefully be commended to probation interests and penal reformers (see Himanen, 2001).