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And what of our rights, those of us outside the realm of the criminal-justice system? If the past several years in the shadow of a war against terrorism have taught us anything, it is that, once available, surveillance technologies rarely go unused, or un-abused. Could yesterday's warrantless wiretapping become tomorrow's clandestine cell-phone tracking? The technology already exists: even a cell phone that lacks a GPS can be traced to within a few city blocks. Once the legal and technical infrastructures were in place to allow the monitoring of criminals, it would be a relatively simple step to extend that monitoring to any person the government considered, for whatever reason, to be "of interest."
For now, of course, none of these scenarios is close to taking place. Even HOPE, a narrow, low-tech program, is limited to Hawaii, and the number of convicts wearing BI's anklets still make up a tiny fraction of those serving time, even outside prison walls. When close monitoring of probationers and parolees emerges as an ever more obvious alternative to expensive incarcerations, we would be wise to remain vigilant against Orwellian abuses. But potential drawbacks and pitfalls notwithstanding, it seems likely that the invasive surveillance model, combining tracking technology and the Kleiman/Alm paradigm of "swift and certain" justice, could offer an alternative to much of the waste—in human as well as economic terms—of our current, dysfunctional system.
In a way, the goal of Panopticon justice is as old as morality itself. It aims to install a tiny voice in each offender's head, a warning that someone is watching and that wrongdoing will be punished. Most of us call that tiny voice a conscience. But for some that voice is overwhelmed by other, louder voices expressing need or impulse or desire, voices less bound by reason or consequence. If a device strapped to an ankle can help restore the balance, can amplify the voice of conscience relative to the others, is that such a bad thing? For optimists of human nature, it is a melancholy realization that the highest function of humanity can be, to some extent, outsourced to a plastic box. But the American criminal-justice system has become in many ways a graveyard of optimism. And surely it is better to outsource the fragile voice of conscience to a plastic box than to do what our brick-and-bar prisons so often do, which is to extinguish that voice altogether.