Prison Law

51ta-us7crlKey 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.”

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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.

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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:

Inprisonment_Rates

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.

511Z26YT83L._SX322_BO1,204,203,200_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.

Thermodynamics and Urban Sprawl

Termite Mound

Evolution is just a special case of thermodynamics. Molecules spontaneously arrange themselves to optimally dissipate energy.

Society itself is a thermodynamic system for entropy dissipation. Energy goes in–in the form of food and, recently, fuels like oil–and children and buildings come out.

Government is simply the entire power structure of a region–from the President to your dad, from bandits to your boss. But when people say, “government,” they typically mean the official one written down in laws that lives in white buildings in Washington, DC.

London

When the “government” makes laws that try to change the natural flow of energy or information through society, society responds by routing around the law, just as water flows around a boulder that falls in a stream.

The ban on trade with Britain and France in the early 1800s, for example, did not actually stop people from trading with Britain and France–trade just became re-routed through smuggling operations. It took a great deal of energy–in the form of navies–to suppress piracy and smuggling in the Gulf and Caribbean–chiefly by executing pirates and imprisoning smugglers.

Beehive

When the government decided that companies couldn’t use IQ tests in hiring anymore (because IQ tests have a “disparate impact” on minorities because black people tend to score worse, on average, than whites,) in Griggs vs. Duke Power, they didn’t start hiring more black folks. They just started using college degrees as a proxy for intelligence, contributing to the soul-crushing debt and degree inflation young people know and love today.

Similarly, when the government tried to stop companies from asking about applicants’ criminal histories–again, because the results were disproportionately bad for minorities–companies didn’t start hiring more blacks. Since not hiring criminals is important to companies, HR departments turned to the next best metric: race. These laws ironically led to fewer blacks being hired, not more.

Where the government has tried to protect the poor by passing tenant’s rights laws, we actually see the opposite: poorer tenants are harmed. By making it harder to evict tenants, the government makes landlords reluctant to take on high-risk (ie, poor) tenants.

The passage of various anti-discrimination and subsidized housing laws (as well as the repeal of various discriminatory laws throughout the mid-20th century) lead to the growth of urban ghettos, which in turn triggered the crime wave of the 70s, 80s, and 90s.

Crime and urban decay have made inner cities–some of the most valuable real estate in the country–nigh unlivable, resulting in the “flight” of millions of residents and the collective loss of millions of dollars due to plummeting home values.

Work-arounds are not cheap. They are less efficient–and thus more expensive–than the previous, banned system.

Urban sprawl driven by white flight

Smuggled goods cost more than legally traded goods due to the personal risks smugglers must take. If companies can’t tell who is and isn’t a criminal, the cost of avoiding criminals becomes turning down good employees just because they happen to be black. If companies can’t directly test intelligence, the cost becomes a massive increase in the amount of money being spent on accreditation and devaluation of the signaling power of a degree.

We have dug up literally billions of dollars worth of concentrated sunlight in the form of fossil fuels in order to rebuild our nation’s infrastructure in order to work around the criminal blights in the centers of our cities, condemning workers to hour-long commutes and paying inflated prices for homes in neighborhoods with “good schools.”

Note: this is not an argument against laws. Some laws increase efficiency. Some laws make life better.

This is a reminder that everything is subject to thermodynamics. Nothing is free.

Piracy and Emergent Order: Peter Leeson’s An-arrgh-chy and the Invisible Hook

Buccaneer of the Caribbean, from Howard Pyle’s Book of Pirates

After our long trek through Siberia, I wanted to change things up and do something rather different for Anthropology Friday, so today we’re reading Peter Leeson’s work on pirates. Strictly speaking, it isn’t quite “anthropology” because Leeson didn’t go live with pirates, but I’m willing to overlook that.

The Golden Age of piracy only lasted from 1690 through 1730, but in those days they were a serious menace to ships and men alike on the high seas. In A General History of the Robberies and Murders of the most notorious Pyrates, (1724,) Captain Charles Johnson complained:

“This was at a Time that the Pyrates had obtained such an Acquisition of Strength, that they were in no Concern about preserving themselves from the Justice of Laws”

Pirates stalked the ocean’s major trade routes, particularly between the Bahamas, Caribbean islands, Madagascar, and the North American coast. Over a century after Captain Johnson, Melville recounted the pirates of Malaysia and Indonesia:

The long and narrow peninsula of Malacca, extending south-eastward from the territories of Birmah, forms the most southerly point of all Asia. In a continuous line from that peninsula stretch the long islands of Sumatra, Java, Bally, and Timor … By the straits of Sunda, chiefly, vessels bound to China from the west, emerge into the China seas.

Those narrow straits of Sunda divide Sumatra from Java; and standing midway in that vast rampart of islands, buttressed by that bold green promontory, known to seamen as Java Head; they not a little correspond to the central gateway opening into some vast walled empire: and considering the inexhaustible wealth of spices, and silks, and jewels, and gold, and ivory, with which the thousand islands of that oriental sea are enriched, it seems a significant provision of nature, that such treasures, by the very formation of the land, should at least bear the appearance, however ineffectual, of being guarded from the all-grasping western world. ..

Time out of mind the piratical proas of the Malays, lurking among the low shaded coves and islets of Sumatra, have sallied out upon the vessels sailing through the straits, fiercely demanding tribute at the point of their spears. Though by the repeated bloody chastisements they have received at the hands of European cruisers, the audacity of these corsairs has of late been somewhat repressed; yet, even at the present day, we occasionally hear of English and American vessels, which, in those waters, have been remorselessly boarded and pillaged. …

And who could tell whether, in that congregated caravan, Moby Dick himself might not temporarily be swimming, like the worshipped white-elephant in the coronation procession of the Siamese! So with stun-sail piled on stun-sail, we sailed along, driving these leviathans before us; when, of a sudden, the voice of Tashtego was heard, loudly directing attention to something in our wake. …

It seemed formed of detached white vapours, rising and falling something like the spouts of the whales; only they did not so completely come and go; for they constantly hovered, without finally disappearing. Levelling his glass at this sight, Ahab quickly revolved in his pivot-hole, crying, “Aloft there, and rig whips and buckets to wet the sails;—Malays, sir, and after us!”

Leeson distinguishes between different sorts of pirates; for the rest of this article we will not be dealing with Malay, Somali, or Barbary pirates, but only the Atlantic-dwelling species. These pirates enlisted for the long haul and lived for months at sea, forming veritable floating societies. Modern Somali pirates, by contrast, live ashore, hop in their boats when they spot a victim, rob and murder, then head back to shore–they form no comparable sea-borne society.

One of the most fascinating aspects of pirate life–leaving aside faulty romantic notions of plunder and murder–is that even these anarchists of the sea instituted social organization among themselves.

Marooned, by Howard Pyle

Pirates had contracts, complete with clauses detailing the division of loot, compensation for different injuries sustained on the job, division of power between the Captain and the Quarter-Master, and election of the captain.

Yes, pirates elected their captains, and if they did not like their captain’s performance, they could un-elect him. According to Leeson:

The historical record contains numerous examples of pirate crews deposing unwanted captains by majority vote or otherwise removing them from power through popular consensus. Captain Charles Vane’s pirate crew, for example, popularly deposed him for cowardice: “the Captain’s Behavior was obliged to stand the Test of a Vote, and a Resolution passed against his Honour and Dignity . . . deposing him from the Command”

In The Invisible Hook: The Law and Economics of Pirate Tolerance, Leeson provides us with a typical contract, used by pirate captain Edward Low’s crew around 1723:

1. The Captain is to have two full Shares; the Master is to have one Share and one half; The Doctor, Mate, Gunner[,] and Boatswain, one Share and one Quarter [and everyone
else to have one share]. …
3. He that shall be found Guilty of Cowardice in the time of Ingagement, shall suffer what Punishment the Captain and Majority of the Company shall think fit.
4. If any Gold, Jewels, Silver, &c. be found on Board of any Prize or Prizes to the value of a Piece of Eight, & the finder do not deliver it to the Quarter Master in the space of 24
hours shall suffer what punishment the Captain and Majority of the Company shall think fit. …
6. He that shall have the Misfortune to lose a Limb in time of Engagement, shall have the Sum of Six hundred pieces of Eight, and remain aboard as long as he shall think fit. …
8. He that sees a sail first, shall have the best Pistol or Small Arm aboard of her.
9. He that shall be guilty of Drunkenness in time of Engagement shall suffer what Punishment the Captain and Majority of the Company shall think fit. …

Why did pirates go to the bother of writing contracts–or should we say, constitutions–for the running of their ships? In An-arrgh-chy: The Law and Economics of Pirate Organization, Leeson compares conditions aboard pirate ships to those aboard regular merchant vessels of the same day.

Merchant vessels were typically owned by corporations, such as the Dutch East India Company. Wealthy land-lubbers bought shares in these companies, which entitled them to a share of the boat’s profits when it returned to port. But these land-lubbers had no intention of actually getting on the boats–not only did they lack the requisite nautical knowledge, but ocean voyages were extremely dangerous. For example, 252 out of 270 sailors in Ferdinand Magellan’s crew died during their circumnavigation of the globe (1519 through 1522.) Imagine signing up for a job with a 93% death rate!

The owners, therefore, hired a captain, whose job–like a modern CEO–was to ensure that the ship returned with as high profits for its owners as possible.

The captain of a merchant ship was an autocrat with absolute control, including the power to dole out corporal punishment to his crew.

Ships through the ages: Pirate dhow; Spanish or Venetian galley; Spanish galleon
The dhow “is a typical 16th century dhow, a grab-built, lateen-rigged vessel of Arabia, the Mediterranean, and the Indian Ocean. It has the usual long overhang forward, high poop deck and open waist. The dhow was notorious in the slave trade on the east coast of Africa, and even after a thousand years is still one of the swiftest of sailing crafts.”

For all their pains, sailors were paid pitifully little: “Between 1689 and 1740 [pay]
varied from 25 to 55 shillings per month, a meager £15 to £33 per year.” By contrast, “Even the small pirate crew captained by John Evans in 1722 took enough booty to split
“nine thousand Pounds among thirty Persons”—or £300 a pirate—in less than six months “on the account”.”

The captain’s absolute power over his crew was not due to offering good wages, pleasant working conditions, or even a decent chance of not dying, but because he had the power of the state behind him to enforce his authority and punish anyone who mutinied against him.

Pirate captains, by contrast, were neither responsible to stockholders nor had the power of the state to enforce their authority. They had only–literally–the consent of their governed: the other pirates on board.

Why have a captain at all?

A small group–a maximum of 10 or 15 people, perhaps–can easily discuss and negotiate everything they want to do. For a larger group to achieve its aims requires some form of coherent, established organization. It would be inefficient–and probably deadly–for multiple pirates to start shouting conflicting orders in the middle of battle. It would be inefficient–and probably deadly–for a pirate crew to argue over the proper division of loot after it was captured.

The average pirate crew–calculated by Leeson–had 80 people, well within Dunbar’s Number, the theoretical “cognitive limit to the number of people with whom one can maintain stable social relationships—relationships in which an individual knows who each person is and how each person relates to every other person.[1][2]” The Dunbar Number is generally believed to be around 10o-150.

But how does emergent order emerge? What incentivizes each pirate to put aside their own personal desire to be captain and vote for someone else?

In Is Deference the Price of Being Seen as Reasonable? How Status Hierarchies Incentivize Acceptance of Low Status, Ridgeway and Nakagawa write (h/t Evolving_Moloch):

How, then, do collective, roughly consensual status hierarchies so regularly emerge among goal-interdependent people? While individuals have an enlightened self-interest in deferring to others on the basis of their apparent ability and willingness to contribute to the task effort, these same individuals also have a much more egoistic self-interest in gaining as much status and influence as they can, regardless. … The key is recognizing that whatever individuals want for themselves, they want others in the group to defer to those expected to best contribute to the collective effort since this will maximize task success and the shared benefits that flow from that. … As a result, group members are likely to form implicit coalitions to pressure others in the group to defer on the basis of performance expectations. … they are likely to be faced by an implicit coalition of other group members who pressure them to defer on that basis. … an interdependence of exchange interests gives rise to group norms that members enforce. … These are the core implicit rules for status that are likely taken-for-granted cultural knowledge…

The baseline respect earned by deference is less than the esteem offered to high-status member. It is respect for knowing one’s place because it views the deferrer as at least understanding what is validly better for achieving the groups goals even if he or she is not personally better. Yet it is still a type of worthiness. It is an acceptance of the low-status member not as an object of scorn but as a worthy member who understands and affirms the groups standards of value…

As such, [the reaction of respect and approval] acts as a positive incentive system for expected deference…

our implicit cultural rules for enacting status hierarchies not only incentivize contributions to the collective goal. they create a general, if modest, incentive to defer to those for whom the group has higher performance expectations–an incentive we characterize as the dignity of being deemed reasonable.

While any group above 10 or 15 people will have some communication complications, so long as it is still below the Dunbar Number, it should be able to work out its own, beneficial organization: order is a spontaneous, natural feature of human communities. Without this ability, pirate ships would not be able to function–they would devolve into back-stabbing anarchy. As Leeson notes:

The evidence also suggests that piratical articles were successful in preventing internal conflict and creating order aboard pirate ships. Pirates, it appears, strictly adhered to their articles. According to one historian, pirates were more orderly, peaceful, and well organized among themselves than many of the colonies, merchant ships, or vessels of the Royal Navy (Pringle 1953; Rogozinski 2000). As an astonished pirate observer put it, “At sea, they per form their duties with a great deal of order, better even than on the Ships of the Dutch East India Company; the pirates take a great deal of pride in doing things right”…

“great robbers as they are to all besides, [pirates] are precisely just among themselves; without which they could no more Subsist than a Structure without a Foundation” …

Beyond the Dunbar Number, however, people must deal with strangers–people who are not part of their personal status-conferring coalition. Large societies require some form of top-down management in order to function.

Based on the legend of Henri Caesar–see also the story of Florida’s Black Caesar

Let’s let Leeson have the final quote:

Pirates were a diverse lot. A sample of 700 pirates active in the Caribbean between 1715 and 1725, for example, reveals that 35 percent were English, 25 percent were American, 20 percent were West Indian,
10 percent were Scottish, 8 percent were Welsh, and 2 percent were Swedish, Dutch, French, and Spanish …
Pirate crews were also racially diverse. Based on data available from 23 pirate crews active between 1682 and 1726, the racial composition of ships varied between 13 and 98 percent black. If this sample is representative, 25–30 percent of the average pirate crew was of African descent.

There were, of course, very sensible reasons why a large percent of pirates were black: better a pirate than a slave.

(Personally, while I think pirates are interesting in much the same vein as Genghis Khan, I would still like to note that they were extremely violent criminals who murdered innocent people.)