Reengineering sentencing, incarceration, and rehabilitation: Future of law P4

Our prison system is broken. In much of the world, prisons regularly violate basic human rights, while developed countries incarcerate inmates more than they reform them.

In the United States, the failure of the prison system is arguably most visible. By the numbers, the US jails 25 percent of the world’s inmate population—that’s 760 prisoners per 100,000 citizens (2012) compared to Brazil at 242 or Germany at 90. Given that the US has the world's largest prison population, it's future evolution has an outsized impact on how the rest of the world thinks about managing criminals. This is why the US system is the focus of this chapter.

However, the change needed to make our incarceration system more effective and humane won’t happen from within—a range of outside forces will see to that. 

Trends influencing change in the prison system

Prison reform has been a hot-button political issue for decades. Traditionally, no politician wants to look weak on crime and few in the public give much thought to the well-being of criminals. 

In the US, the 1980s saw the beginnings of the “war on drugs” that came with it harsh sentencing policies, especially mandatory prison time. The direct result of these policies was an explosion in the prison population from under 300,000 in 1970 (roughly 100 inmates per 100,000) to 1.5 million by 2010 (over 700 inmates per 100,000)—and let’s not forget the four million parolees.

As one would expect, most of those stuffed into prisons were drug offenders, i.e. addicts and low-level drug peddlers. Unfortunately, most of these offenders came from poorer neighborhoods, thereby adding racial discrimination and class warfare undertones to the already controversial application of incarceration. These side effects, in addition to a variety of emerging societal and technological trends, are leading to a broad, bipartisan movement towards comprehensive criminal justice reform. The main trends leading this shift include: 

Overcrowding. The US doesn't have enough prisons to humanely house its total inmate population, with the Federal Bureau of Prisons reporting an average over-capacity rate of roughly 36 percent. Under the current system, building, maintaining and staffing more prisons to properly accommodate further increases in the prison population is placing serious strain on state budgets.

Graying inmate population. Prisons are slowly becoming the US' largest care provider for senior citizens, with the number of inmates over 55 nearly quadrupling between 1995 and 2010. By 2030, at least a third of all US inmates will be senior citizens who will require a higher level of medical and nursing support than is currently provided in most prisons. On average, caring for elderly inmates can cost between two to four times what it currently costs to imprison a person in their 20s or 30s.

Caring for the mentally ill. Similar to the point above, prisons are slowly becoming the US' largest care provider for people with serious mental illnesses. Since the defunding and closure of most state-run mental health institutions in the 1970s, the large population of people with mental health issues were left without the support system needed to care for themselves. Unfortunately, a large number of the more extreme cases found their way into the criminal justice system where they have languished without the proper mental health treatments they need.

Healthcare overruns. The increased violence caused by overcrowding, mixed with the growing need to care for the mentally ill and elderly inmate population, mean that the health care bill in most prisons has been ballooning year-to-year.

Chronically high recidivism. Given the lack of education and resocialization programs in prisons, the lack of post-release support, as well as the barriers to traditional employment for ex-convicts, the recidivism rate is chronically high (well over 50 percent) leading to a revolving door of people entering and then re-entering the prison system. This makes reducing the nation’s inmate population next to impossible.

Future economic recession. As discussed in detail in our Future of Work series, the next two decades, in particular, will see a series of more regular recessionary cycles due to the automation of human labor by advanced machines and artificial intelligence (AI). This will lead to a shrinking of the middle class and a shrinking of the tax base they generate—a factor that will affect future funding of the justice system. 

Cost. All the abovementioned points together lead to an incarceration system that costs about 40-46 billion dollars annually in the US alone (assuming a per inmate cost of $30,000). Without a substantial change, this figure will grow substantially by 2030.

Conservative shift. Given the prison system's mounting current and forecasted financial burden on state and federal budgets, normally ‘tough on crime' minded conservatives are beginning to evolve their views on mandatory sentencing and incarceration. This shift will eventually make it easier for justice reform bills to secure enough bipartisan votes to pass into law. 

Shifting public perceptions around drug use. Supporting this ideological shift is the support from the general public for reducing sentencing for drug-related crimes. In particular, there is less public appetite for criminalizing addiction, as well as broad support for the decriminalization of drugs like marijuana. 

Growing activism against racism. Given the rise of the Black Lives Matter movement and the current cultural dominance of political correctness and social justice, politicians are feeling growing public pressure to reform laws that disproportionately target and criminalize the poor, minorities and other marginalized members of society.

New technology. A variety of new technologies are beginning to enter the prison market with the promise of substantially reducing the cost of running prisons and supporting inmates after release. More about these innovations later.

Rationalizing sentencing

The economic, cultural, and technological trends coming to bear on our criminal justice system is slowly evolving the approach our governments take towards sentencing, incarceration, and rehabilitation. Starting with sentencing, these trends will eventually:

• Reduce mandatory minimum sentences and give judges more control over prison term length;
• Have judges’ sentencing patterns assessed by peers to help them address biases that may disproportionately punish people harsher depending on their race, ethnicity or economic class;
• Provide judges with more sentencing alternatives to prison time, especially for senior citizens and the mentally ill;
• Reduce select felony offenses to misdemeanors, especially for drug-related offenses;
• Lower or waive bond requirements for defendants with low income;
• Improve how criminal records are sealed or erased to help ex-offenders find jobs and reintegrate into society;

Meanwhile, by the early 2030s, judges will begin using data-driven analytics to enforce evidence-based sentencing. This novel form of sentencing uses computers to review the defendant’s prior criminal record, their work history, socio-economic traits, even their answers to a psychographic survey, all to make a prediction about their risk of committing future crimes. If the defendant’s re-offending risk is low, then the judge is encouraged to give them a lenient sentence; if their risk is high, then the defendant will likely get a harsher sentence than the norm. On the whole, this gives judges more freedom to apply responsible punishment on convicted criminals.

At the political level, social pressures against the drug war will eventually see marijuana's full decriminalization by the late 2020s, as well as mass pardons for the thousands currently locked up for its possession. To further reduce the cost of prison overpopulation, pardons, and early parole hearings will be offered to many thousands of non-violent inmates. Finally, lawmakers will begin a process of rationalizing the legal system to reduce the number of special-interest written laws on the books and reduce the total number of law violations that demand prison time. 

Distributed court and legal system

To reduce the strain on the criminal court system, the sentencing of misdemeanors, low-level felonies and select forms of business and family law cases will be decentralized to smaller community courts. Early trials of these courts have proven successful, producing a 10 percent drop in recidivism and a 35 percent drop in offenders being sent to jail. 

These numbers were achieved by having these courts engrain themselves within the community. Their judges actively work to divert the application of jail time by having the defendants agree to a stay in a rehab or mental health center, do community services hours—and, in some cases, wear an electronic tag in place of a formal parole system that tracks their whereabouts and warns them against doing certain activities or physically being in certain locations. With this structure, offenders get to maintain their family ties, avoid a financially crippling criminal record, and avoid the creation of relationships with criminal influences that would be common inside the prison environment. 

Overall, these community courts lead to better results for the communities they serve and dramatically reduce the cost of applying the law at the local level. 

Reimagining prisons beyond the cage

Today’s prisons do an effective job at caging thousands of inmates—the problem is that they do little else. Their design doesn’t work to reform inmates, nor do they work to keep them safe; and for inmates with mental illnesses, these prisons make their conditions worse, not better. Luckily, the same trends currently working to reform criminal sentencing is also beginning to reform our prison system. 

By the late 2030s, prisons will have nearly completed their transition from brutish, overly expensive cages into rehabilitation centers that also happen to include detention units. The goal of these centers will be to work with inmates to understand and remove their motivation to participate in criminal behavior, while also helping them to reconnect with the outside world in a productive and positive manner through education and training programs. How these future prisons will look and operate in reality can be broken down into four key points:

Prison design. Studies have found that people who live in depressing surroundings and high-stress environments are more likely to exhibit poor behavior. These conditions are how most people would describe modern prisons, and they'd be right. That's why there is a growing trend to redesign prisons to look more like an inviting college campus. 

A concept by the firm, KMD Architects, envisions a detention center (example one and two) that's made up of three buildings separated by level of security, .i.e. prison building one is maximum security, prison two is moderate security, and one is minimum security. Inmates are assigned to these respective buildings based on their pre-assessed threat level, as outlined by the evidence-based sentencing described above. However, based on good behavior, inmates from maximum security can gradually transfer into the moderate and minimum security buildings/wings where they would enjoy fewer restrictions and greater freedoms, thereby incentivizing reform. 

The design of this prison structure has already been used with much success for juvenile detention facilities but has yet to transfer over to adult prisons.

Technology in the cage. To complement these design changes, new technologies will become widespread in future prisons that will make them safer for both the inmates and the prison guards, thereby reducing the overall stress and violence that's widespread inside our penitentiaries. For example, while video surveillance is common throughout modern prisons, they will soon be combined with AI which can automatically detect suspicious or violent behavior and alert the normally understaffed prison guard team on duty. Other prison tech that will likely become common by the 2030s include:

• RFID bracelets are tracking devices that some prisons are currently experimenting with. They allow the prison control room to monitor inmates' whereabouts at all times, alerting guards to unusual concentrations of inmates or inmates entering restricted areas. Eventually, once these tracking devices are implanted into the inmate, the prison will also be able to remotely track the inmate's health and even their levels of aggression by measuring their heartbeat and hormones in their bloodstream.
• Cheap full-body scanners will be installed throughout the prison to identify contraband on inmates more safely and efficiently than the manual process prison guards currently perform.
• Teleconferencing rooms will allow doctors to provide medical checkups on inmates remotely. This will reduce the cost of transporting inmates from prisons to high-security hospitals, and it will allow fewer doctors to serve a larger number of inmates in need. These rooms can also enable more regular meetings with mental health workers and legal aids.
• Cell phone jammers will restrict the ability of inmates, who gain access to cellphones illegally, to make outside calls to intimidate witnesses or give commands to gang members.
• Terrestrial and aerial patrol drones will be used to monitor common areas and cell blocks. Armed with multiple taser guns, they will also be used to quickly and remotely incapacitate inmates engaging in violence with other inmates or guards.
• A Siri-like AI assistant/virtual prison guard will be assigned to each inmate and accessible through a microphone and speaker in each prison cell and RFID bracelet. The AI will inform the inmate of prison status updates, allow inmates to listen to or verbally write emails to family, allow the inmate to receive news and ask basic Internet queries. Meanwhile, the AI will keep a detailed record of the inmate's actions and rehabilitation progress for later review by the parole board.

Dynamic security. Currently, most prisons operate using a static security model that designs an environment that prevents inmates’ bad intentions from turning into violent acts. In these prisons, inmates are watched, controlled, caged, and limited in the amount of interaction they can have with other inmates and with guards.

In a dynamic security environment, the emphasis is on preventing those bad intentions outright. This involves encouraging human contact with other inmates in common areas and encouraging prison guards to build friendly relationships with the inmates. This also includes well designed common areas and cells that resemble dorm rooms more so that cages. Security cameras are limited in number and inmates are given greater trust to move around without being chaperoned by guards. Conflicts between inmates are identified early and resolved verbally with the assistance of a mediation expert.

While this dynamic security style is currently used with great success in the Norwegian penal system, its implementation will likely be limited to lower security prisons in the rest of Europe and North America.

Rehabilitation. The most important element of future prisons will be their rehabilitation programs. Just as schools today are ranked and funded based on their ability to churn out students who meet a prescribed education level, prisons will be similarly ranked and funded based on their ability to lower recidivism rates.

Prisons will have an entire wing devoted to inmate therapy, education and skills training, as well as job placement services that help inmates secure a home and job post-release, and continue to support their employment for years after (an extension of the parole service). The goal is to make inmates marketable in the job market by the time they are released so that they have a viable alternative to crime to support themselves.

Prison alternatives

Earlier, we discussed redirecting elderly and mentally ill convicts to specialized correctional centers where they could get the care and specialized rehabilitation they needed more economically than they would in an average prison. However, new research into how the brain works are revealing entirely new potential alternatives to traditional incarceration.

For example, studies investigating the brains of people with a history of criminality compared with the general public have revealed distinct differences that may explain a propensity for asocial and criminal behavior. Once this science is refined, options outside of traditional incarceration may become possible, such as gene therapy and specialized brain surgeries—the goal being to heal any brain damage or cure any genetic component of an inmate's criminality that could lead to their reintegration into society. By the late 2030s, it will gradually become possible to "cure" a portion of the prison population with these types of procedures, opening the door for early parole or immediate release.

Further into the future, the 2060s, it will be possible to upload an inmate's brain into a virtual, Matrix-like world, while their physical body is confined to a hibernation pod. In this virtual world, inmates will occupy a virtual prison without any fear of violence from other prisoners. More interestingly, inmates in this environment can have their perceptions altered so as to make them believe they spent years within a prison where in reality, only a few days passed by. This technology would permit centuries-long sentences—a topic we'll cover in the next chapter. 

The future of sentencing and incarceration is trending toward some truly positive changes. Unfortunately, these advancements will take decades to effect, as many developing and authoritarian nations will likely not have the resources or interest in making these reforms.

These changes are nothing, however, compared to the legal precedents future technologies and cultural shifts will force into the public sphere. Read more in the next chapter of this series.

Future of law series

Trends that will reshape the modern law firm: Future of law P1

Mind-reading devices to end wrongful convictions: Future of law P2    

Automated judging of criminals: Future of law P3  

List of future legal precedents tomorrow's courts will judge: Future of law P5