Prison Law

Key tenants of the Prisoners’ Code:

• Never rat on another convict
• Don’t be nosy
• Don’t gossip
• Don’t lie
• Don’t steal
• Pay your debts
• Don’t be weak
• Don’t whine

Welcome back to our discussion of Legal Systems Very Different from Ours, by Friedman, Leeson, and Skarbek. Today we are discussing chapter 8: Prisoners’ Law–a subject of continuing interest to me, as you know.

While I have questioned why people would bother having multiple legal systems–why have parallel or multiple systems, instead of just one–what if we begin from the opposite assumption: why not have multiple legal systems? After all, modern societies are vast, with many different interest groups. There is the state, which wants mostly to promote trade, economic activities, and tax revenues–and will attempt to cut down on violent, predatory human (and animal) behavior to the extent that it interferes with the former. Then there are individuals, whose interests–like avoiding taxation and making sure their kids marry good spouses–are very different from the state’s.

If you have a state that is really trustworthy and definitely wouldn’t use knowledge of your assets gained during a divorce dispute to increase your taxes, then you might be happy to run your interests through the state-run legal system, but if you have any doubts about the state’s potential trustworthiness, you might want a different system to handle your more intimate problems.

Prisoners, of course, don’t have much hope of the state caring terribly much about resolving their disputes. I can’t imagine that prison guards really care that much if Prisoner A cheats Prisoner B out of cigarettes, so long as A and B both keep quiet and don’t make trouble. Even the murder of Prisoner A by Prisoner B may not trouble the guards, especially if it relieves them of some of their duties.

So prisoners–despite generally being lawbreakers themselves–have a strong incentive to create their own legal systems, and they do:

Nevertheless, across every period of prison life that we know about, we consistently find that officials provide only some… of the safety that prisoners crave. In fact, prisoners have developed a legal system of their own to order the society of captives.

… the nature of California prisons is that there are many resources that are held in common. The pull-up bars, tables and benches, handball courts, and basketball courts are freely open to all prisoners, at least officially. In reality, however, there is far more demand to use these resources than there is available supply.

The guards simply do not care enough to ration access to the facilities; prisoners work that out among themselves:

One prisoner associated with a Northern Hispanic gang explains, “If a new yard opens up, you’re going to fight for that handball court, you’re going to fight for some tables… If you ain’t a Northerner and you come into that areas, you’re going to get stabbed.”

Not getting harassed by antifa.

Gangs, like pirates and yellowjackets, wear their affiliations openly so you know not to mess with them. This, in turn, greatly reduces the chances of you getting stabbed.

Prisoners also have to set up their own systems of rules and enforcement because prisoners have a habit of doing illegal things, like selling drugs, and the government tends to look down on such activities and attempt to stop them (or at least take a cut of the profits). Prisoners can’t depend on prison guards to make sure they get paid for illegal drug deals, smuggled cigarettes, or hired violence.

For all these three reasons, in nearly any prison that scholars have studied, we find that prisoners create parallel, informal legal institutions.

The Prisoners’ Code–quoted at the beginning of the post–served California prisons prior to the 1960s. Adherence to the code meant that one was a “convict” in good standing with his fellows; those who violated the code were mere “inmates” in bad standing with their neighbors. Nobody likes a rat, and “inmates”, since they were regarded as having already violated the general trust, were fair game for victimization. Convicts, by contrast, had the general support of their fellows and so were protected.

The Code was fairly informal–not a written document, not formally agreed upon, not enforced by any particular body. It was just what everyone knew and agreed to, and who was and wasn’t a convict in good standing was just common knowledge.

Interesting, during this period, prisoners did not strictly segregate themselves by race and ethnicity. …

Edward Bunker, who served time in San Quentin prison in the 1950s and later, explained that, “although each race tended to congregate with their own, there was little overt racial tension or hostility. That would change in the decade ahead. what I did for a black friend in the mid-fifties is something I would never have even considered a decade later.”

Well damn. That sounds shitty.

Point Lookout Cemetery, Angola Prison–final resting place of those who will never leave.

The Code broke down because the prison population exploded and became much more ethnically diverse during the great crime wave of the late 20th century. California prisons went from housing about 5,000 people total around 1950 to over 170,000 people in the 2000s. A system based on simply knowing whether or not the guy you were talking to was generally regarded as a convict in good standing breaks down when the system has 170,000 people in it.

This was compounded by the fact that the prison population was becoming much more ethically and racially diverse. Whereas in 1951 there used to be two white prisoners for every one black or Hispanic prisoner, that ratio had reversed by 1980. Heterogeneity undermines decentralized legal systems because it confounds consensus.

Or in other words, diversity leads to centralized authoritarianism.

Here’s a graph, for the visually inclined:

Coinciding with these changes, there was a significant increase in prisoner on prisoner violence. … In response to this increasingly chaotic environment, prisoners turned to groups that today we often assume are the sources of disorder–prison gangs.

This makes sense–with too many inmates from too many backgrounds to enforce common norms via common knowledge, a new layer of organization–gangs–formed to fill the gap.

A formalist would say that we should make gangs official.

Gangs operate in a community responsibility system. Each prisoner must have an affiliation with a group, and each group is responsible for each members’ actions.

Sounds like Chinese law.

Of course, not everyone is a full member of a prison gang, just like not everyone is a paid member of the US government. Most prisoners, though, are affiliated to some group to some extent, following the rules set by their group.

Prison gangs often have written constitutions to order their internal workings. … There are clearly established leadership structures, and some of these positions are filled through democratic elections by a gangs’s members.

Sounds like pirates.

Prison gangs work to prevent conflicts between their members and resolve conflicts between their members and outsiders.

For example, if a member of one gang is delinquent in a drug debt to another group, that prisoner’s entire gang is responsible for it. He ma be forced to contact family on the outside to pay it off. The gang may pool their resources to pay it off. the gang may force the prisoner to work the debt off for the other gang… the gang itself might assault their own member to the extent that it satisfies the shot caller of the other group…

Gang-based governance outperforms the Prisoner Code because it requires less information about other people’s reputations. It is easier to know the reputation of a group than to know the reputation of every member of that group.

Seems like a lot of information processing works this way; I care less about the particular details of a random tree than “this is a tree.”

The authors argue that, even though gangs are usually blamed for crime, at least in the case of prisons, the rise of gangs coincided with a drop in crime:

… there was a nearly 90% decline in prisoner homicides from 1973 to 2012 (no data available from 1974-1979). During much of the 2000s, the homicide rate in prison was actually lower than outside of prisons. [!!!]

The homicide rate per hundred thousand prisoners was just over 60 (looks like 63 on the graph) in 1973, and bottomed out around 3 or 4 in 2001. There has been a slight increase in the most recent data, with about 8 murders per 100k in 2012.

Of course, prisons have probably taken measures to prevent inmates from killing each other, but I suspect that is difficult to convince people who are already in prison to be afraid of more prison, but it is easy to make them afraid of getting beaten.

But there are some ironies:

… despite a dramatic decline in the free world in racial prejudice since the 1940s, prison life is actually significantly more segregated today. Showers, telephones, handball courts, and even areas in the yard to sit are claimed by different racial groups and other races are not allowed to use them. Members of different races are not allowed to share cigarettes or meals together, or even live in the same prison cell.

Do the gangs prevent murder (if they do at all) by effectively threatening to make punishment painful for any would-be murderers, or by forcing people to segregate?

The authors note that organizing along racial lines solve information problems quickly–you can tell at a glance which group someone belongs to. But gangs have a variety of drawbacks as government systems–they tend to increase recidivism among their members, for example, and predatory behavior by senior gang members against lower-ranking members often goes unchecked because, being prisoners, they have nowhere else to go.

It is interesting that prison gangs are allowed to operate. Their primary purpose isn’t keeping peace and preventing murder (or so they claim), but doing business–selling drugs and the like. Peace is good for business; murder is bad for business because it gets the guards involved. One might think that prison guards would be uncomfortable with prisons being run by racial gangs that were formed to do illegal things, but either the guards don’t really care, it’s too hard to eliminate the gangs without a great deal more money and effort, or they’ve decided that life is just better with the gangs running things.

That’s all for today, but please see some of my previous posts related to prisons: God of the Rodeo, about Angola Prison, Louisiana; and my review of Oriental Prisons: pt 1: Thugee; pt 2: Andaman Islands;  pt 3: Burma, China, and Japan; and pt 4: Egypt.

Next week, we’ll take a look at Saga-Era Iceland.

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