Outsourcing torture and execution

Member of an American prison gang (Wikicommons: Border Brothers). A jail sentence is no longer just a jail sentence.

When my scholarship was cancelled I began looking for short-term contracts to support myself. At that time Quebec City offered little in the way of long-term employment, but demand was strong for bilingual contractuels who knew software packages like WordPerfect (which was not at all user-friendly in the late 1980s). 

One day I got a call from a maximum security prison west of Quebec City. A renewable six-month clerical position. Good pay. But I'd have to get vaccinated for hepatitis B. "You never know. There's always a risk of rape in these places." I politely declined. Later someone else phoned to reassure me that the risk was "minimal" and nothing to worry about. I still declined.

Rape and assault are frequent in prisons. This is no surprise. More surprisingly, prison violence is becoming a deliberate form of punishment—a way to make the original sentence a lot worse. This punitive function has been discussed in a recent paper:

To what extent are rapes, beatings, and other assaults essential to the punitive function of the modern prison? Officially, violence of this sort is unlawful and clearly outside the bounds of legitimate punishment. The United States Supreme Court has declared more than once that being assaulted is not "part of the penalty that criminal offenders pay for their offenses against society."

[...] In reality, violence thoroughly defines the prison experience. Prisoners face a substantial risk of being beaten, raped, and even killed at the hands of their fellow inmates or keepers. In a way that is sometimes difficult for those who are unfamiliar with prison to appreciate, prisoners inhabit a world comprehensively defined by this kind of violence. Such violence is the dominant arbiter of social status in prison. It is the means by which authority, hierarchy, and privilege are articulated among prisoners and between prisoners and their keepers. And it is, paradoxically, the most reliable protection against being the victim of violence. (White 2008, pp. 737-738)

When did this punitive function come to be? To some extent it has always existed, but it began to gain much more importance during the "demographic shift" of the 1960s and 1970s (White 2008, pp. 745-746). The baby boom was invading all spheres of life, and this dramatic growth in the number of young people coincided with a weakening of informal social controls by family and church. People were also moving from rural communities (where these informal controls were strong) to big cities (where they were weak). All of these factors facilitated an explosion of criminal behavior, especially the violent sort that young males specialize in. American prisons were overwhelmed, "and by the mid 1970s the correctional model had totally collapsed, superseded by a very different regime" (White 2008, p. 745).

Male violence: pathological in some societies, normal in others

This surge of violent crime happened in all racial groups, but much more in African Americans. Why? The usual explanation is social deprivation. Young men turn to violence when denied full access to education, employment, and social acceptance. Such behavior is abnormal and will disappear in normal circumstances.

That view of “normal” behavior applies only to some societies. Elsewhere, young men are supposed to fight. And not simply as a last resort. They're expected to fight proactively, as a means to gain status, to impress women, and to strike terror in potential enemies (Frost 2010; Frost and Harpending 2015). 

This is in contrast to pacified societies, where the State has imposed a monopoly on violence, and where even self-defense is not always a sufficient excuse. In such societies, violent behavior is criminalized and pathologized. The ideal young man goes to "school" and "work" without ever using violence to defend himself and his family, or even to impress women. Sheesh!

Pacified societies exist throughout much of Europe and East Asia, with interesting exceptions. The strong arm of the State has historically been weak in mountainous regions, like Albania and the Caucasus, and this is also where men are most willing to act violently on their own behalf. In England, endemic violence persisted until the 18th century in the northern border regions, where any encounter with non-kin, however innocent, could turn violent. Disputes would grow into long-running feuds if not settled through payment of blood money (Fischer 1989, pp. 621-632).

These two kinds of society can work fairly well ... if kept apart. In non-pacified societies, the level of personal violence is not as high as one might expect. A sort of dynamic equilibrium makes young men think twice before acting violently, since any violence will be repaid in kind by the victim, his brothers, and his male kin. So violence tends to target people who cannot retaliate, either because they're physically weak or because they have no kinfolk to stand up for them. 

Problems begin when these two kinds of society co-exist on the same territory. When the non-pacified society becomes sufficiently numerous, but not necessarily the majority, it can impose its rules, and everyone will have to play by them. If you cannot fight back and have no "brothers" to defend you, there remains only one option: submit. This is now the case in American prisons and, increasingly, in prisons throughout the Western world.

Indeed, the demographic profile of prisons has changed a lot even in Western Europe, where native Europeans make up fewer and fewer of the inmates. More and more are from societies where State control of personal violence is recent and widely perceived as being illegitimate. They come mostly from North Africa, West Africa, Somalia, Southwest Asia, and South Asia. They are predominantly Muslim, and the Muslim proportion of the prison population gives a rough idea of the demographic shift. This proportion is 60 to 70% in France (Moore 2008), 45% in Belgium (Sudinfo.be 2013), and 15% in the United Kingdom (Allen and Watson 2017, p. 14). Furthermore, Muslim inmates have power beyond their numbers because they are willing to fight for each other. This is a recurring theme in interviews with prisoners:

“there's no gangs in Rochester it's just Muslims stick together”, Muslims “walk around the wings in tens” and 'people will say that the only gang in here are the Muslims they always stick up for each other”. For many Muslim prisoners the solidarity engendered by sharing a faith was viewed as presenting certain obligations just as area allegiances required mutual defensive protection for prisoners: “I see Muslims will stay closer together so ...obviously you have to look out for your brother, help his brother, it's a Muslim's duty. And it's like whatever, whatever I want for myself I should want for my brother.” (Phillips 2012, p. 60)

Some prisoners even convert to Islam as a way to get protection (Phillips 2012, p. 62).

Prison violence as an instrument of law enforcement

Beginning in the 1970s, American law-enforcement began to turn this situation to its own advantage, initially to assert control over prisoners:

In some circumstances, it is clear that rape is used by prison officials as a means of control in its own right—as a means of punishing inmates who are (by the officials' reckoning) especially troublesome, of breaking the will of defiant inmates, and of rewarding (by accommodating their victimization of others) inmates who are in some way helpful to the institution's interests. Where rape is sanctioned in this fashion, a victimized inmate has little hope of gaining the institution's protection from further abuse. Even where it is not so sanctioned, victims of rape often encounter considerable indifference on the part of administrators and staff who would rather not antagonize powerful rapists, who anticipate difficulties with successful investigation, or who for some other reason cannot be bothered. Many staff simply may take the position that defense against rapes and other assaults are an inmate's own obligation. (White 2008, p. 757)

This punitive function has since been extended to people currently outside prison. Initially, it helped to keep juvenile delinquents in line by sending them a crude but simple message: if you're not careful, we'll send you to a place where you'll be raped, assaulted, and perhaps killed. 

Today, that message is no longer aimed solely at juvenile delinquents. Every American knows that a prison sentence is a lot more than time behind bars. In theory, the State no longer maims or tortures. In practice, it does … and on a scale not seen since medieval times:

That such violence is so thoroughly unlawful allows it to serve the state as a mode of punishment without the state ever confessing the true extent of its resort to such barbarity and without thereby surrendering much in the way of its legal and political legitimacy. Indeed, by deeming prison violence illegal, the state in its various manifestations can actually condemn the phenomenon, while yet relying on it as part of [the] regime of control. (White 2008, p. 740)

Toward a new regime of control

This regime of control has developed in an atmosphere of "They’ve got it coming to them anyway!" Prison sentences are normally handed down for serious crimes, like murder or gang rape, and there is still a widespread feeling that such people are not being punished enough. In recent years, however, prison sentences have begun to be imposed for minor offenses, especially in the United Kingdom. 

Last year, an English man was found guilty of placing two bacon sandwiches outside the door of a mosque. He was sentenced to a year in jail, and halfway through the sentence he was found dead in his cell (Curtis 2018). The prison sentence is itself incredible. This was a first-time offense that would have been considered a misdemeanor scarcely a decade ago.

A similar sentence was handed down to Tommy Robinson, the founder of the English Defence League. Not long into his sentence, the inevitable happened:

"They gave him a pasting. He was being taken for a legal visit and was then put in a room with these guys. The door was locked and the warders all disappeared. He has quite a few injuries to his face and neck and needed two visits to the medical wing." The source said his attackers were Muslim prisoners but that could not be verified. Robinson suspects the situation was engineered by the warders because of the obvious threat posed to him by opponents of the EDL. He fears he is a marked man inside the category A prison. (Gover 2014)

The official reason for the sentence? Making an incorrect statement on a mortgage application—a misdemeanor normally punished by a fine. And for this Tommy Robinson was sent to a category A prison. 

This past week, he was again sentenced to jail:

At 14h00 on 25 May 2018 Judge Denise Marson QC summarily sentenced Robinson and issued a notice under Section 4(2) of the Contempt of Court Act 1981 banning any reporting of the hearing, sentence, evidence offered or any other matter relating to the proceedings against Robinson indefinitely until the conclusion of a series of child grooming trials in Leeds Crown Court. (Wikipedia 2018)

This time, Tommy Robinson was sentenced to jail for broadcasting information that might influence the outcome of a rape gang trial (he was livestreaming outside the courthouse). Yet that information had already been published in a local newspaper. Even more strangely, the judge extended the reporting ban to the outcome of Robinson’s trial. That trial had no jurors to influence. It was a trial by judge and was completed in four hours. One final point: some reports state that the judge simply reactivated an existing suspended sentence, hence the speedy trial. But only a few months remained on that sentence, and this one seems to be much longer. For a new sentence a defendant is normally given time to prepare a defense, find witnesses, and choose a lawyer, rather than having a court-appointed one (as was actually the case).

Because of the reporting ban, news reports on this story have either been pulled or modified. Fox News states that he was sentenced to 13 months in prison despite protests from his lawyer, who said this measure would be tantamount to a death sentence, “given his profile and previous credible threats” (Fox News 2018).

One might wonder about these jail sentences for misdemeanors that hardly justify such punishment. And is the punishment really the time spent behind bars? Or is it something else? Like something in the prison environment that can “finish the job”? A strange collusion seems to be developing between the UK justice system and the vilest elements of prison society.

References

Allen, G. and C. Watson (2017). UK Prison Population Statistics. Briefing Paper. House of Commons Library.

http://researchbriefings.files.parliament.uk/documents/SN04334/SN04334.pdf

Fischer, D.H. (1989). Albion's Seed. Four British Folkways in America, Oxford University Press, New York and Oxford, pp. 621-632.

Curtis, J. (2018). Man jailed for leaving a bacon sandwich outside a mosque is found dead in prison halfway through his 12-month sentence. Daily Mail, May 27, 2018

http://www.dailymail.co.uk/news/article-4075328/Man-jailed-leaving-bacon-sandwiched-outside-mosque-dead-prison-half-way-12-month-sentence.html

Fox News (2018). Right-wing activist Tommy Robinson reportedly jailed after filming outside child grooming trial.

http://www.foxnews.com/world/2018/05/26/right-wing-activist-tommy-robinson-reportedly-jailed-after-filming-outside-child-grooming-trial.html

Frost, P. (2010). The Roman State and genetic pacification, Evolutionary Psychology 8(3): 376-389. http://www.epjournal.net/filestore/EP08376389.pdf  

Frost, P. and H. Harpending. (2015). Western Europe, state formation, and genetic pacification, Evolutionary Psychology 13: 230-243.

http://journals.sagepub.com/doi/abs/10.1177/147470491501300114

Gover, D. (2014). Fear of Muslim Attack Beaten up in Woodhill Prison. International Business Times, February 5

https://www.ibtimes.co.uk/edl-founder-tommy-robinson-fear-muslim-attack-beaten-woodhill-prison-1435264

Moore, M. (2008). In France, prisons filled with Muslims, The Washington Post, April 29

http://www.washingtonpost.com/wp-dyn/content/article/2008/04/28/AR2008042802560.html?hpid=topnews

Phillips, C. (2012). 'It ain't nothing like America with the Bloods and the Crips': Gang narratives inside two English prisons. Punishment & Society 14(1): 51-68.

http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.893.3021&rep=rep1&type=pdf

Sudinfo.be (2013). 45% des détenus des prisons belges sont de confession musulmane, Sudinfo.be, May 23

http://www.sudinfo.be/726092/article/actualite/belgique/2013-05-17/45-des-detenus-des-prisons-belges-sont-de-confession-musulmane

White, A.A. (2008). The Concept of "Less Eligibility" and the Social Function of Prison Violence in Class Society. Buffalo Law Review 56: 737-820.

http://scholar.law.colorado.edu/cgi/viewcontent.cgi?article=1310&context=articles

Wikipedia. (2018). Tommy Robinson (activist).

https://en.wikipedia.org/wiki/Tommy_Robinson_%28activist%29#cite_note-79

From low trust to high trust

Code of Hammurabi. Today, law is based on universality, impartiality, and non-discrimination. Yet, originally, its core principles were the very opposite.

A key stage in cultural evolution has been the transition from low-trust to high-trust societies. Originally, the “horizon of trust” encompassed only close kin and long-time friends. Then, in some societies, this horizon progressively broadened to include more distant kin, eventually millions of people. How was this done?

In part, through “fictitious kinship.” Patricia Williams describes how this approach has been used to integrate in-laws into kinship networks:

The way to accomplish this deep acceptance of one’s spouse’s relatives, surely, is to take the emotions regarding one’s own genetic kin that are already present, attach symbols to the emotions, and redirect them to nonrelatives by considering those nonrelatives to be symbolic kin. A strong way to do this is to transform them by exactly parallel terms—call his parents “Mom” and “Dad”; call his siblings “sister” and “brother.” (Williams, 1988, p. 564)

We have also seen this approach with religion, nationalism, and later internationalism: “Brothers and sisters in Christ”; “I am my brother’s keeper”; “We are all “brothers” and so on.

A related approach has been to expand the system of law that once existed only among kith and kin. The notion of “law” may seem out of place here, accustomed as we are to its principles of universality, impartiality, and non-discrimination. Yet, originally, its core principles were the very opposite. Law was not universal. It arose within the web of long-standing reciprocal obligations that bound together man and woman, parents and children, immediate kin and more distant kin within a relatively small clan. Beyond one’s kith and kin, there was no law—other than the law of war.

Things changed with the rise of larger entities. Agriculture spurred population growth, with the result that small clans ballooned into much larger groups. Later came State societies, and empires that encompassed a founding ethnic group and its conquered peoples. Typically, this situation was managed by letting conquered peoples keep their own laws and some internal autonomy. This was the case with the Persian Empire, the Ottoman Empire, and many others. Pre-revolutionary France was a patchwork of local legal systems—a relic of earlier regional entities that had been absorbed into the French state over the centuries.

To varying degrees, State societies eventually reversed the original intent of law—by creating universal rules that apply equally to everyone. This process began with the earliest law codes. The very act of putting a social norm into writing entailed some simplification. Ancient legal systems accepted that laws should vary on a “who whom” basis, but the different categories of “who” and “whom” were necessarily limited.

This process advanced further with certain empires, notably the Roman Empire, which sought not merely to conquer other peoples but also to assimilate them, eventually giving them citizenship. But it was the rise of Christianity, and its establishment as a State religion, that fundamentally changed things. The law was no longer the prerogative of a founding group whose claim to power ultimately rested on “might is right.” It became a moral principle that applied equally to everyone, even the Emperor. When a mob killed a Roman general in 390 AD and thousands were slain in retaliation, the bishop of Milan denounced the massacre and forced the emperor to do public penance (Frost, 2010; Lenox-Conyngham, 2005).

Francis Fukuyama makes this point in his forthcoming book The Origins of Political Order, although he places the influence of Christianity later in time:

[…] the concept of the rule of law emerged very early, largely because of the church’s development of canon law in the 11th century. So when strong rulers started to build states, they had to take account of the emerging codes of civil law.

Europeans then developed the unusual idea that it was the law that should be absolute, not the ruler. In pursuit of this principle, the English Parliament executed one king, Charles I, and deposed another, James II. This proved a durable solution to the problem of building a strong state, yet one in which the ruler was held accountable. (Wade, 2011)

The last phase of this process began with the end of the Dark Ages, and the re-establishment of more orderly societies. Success no longer went to the “bad boys”—the plunderers and ruthless self-aggrandizers—unless they happened to be the ruling elite. And even ruling elites had to become less rapacious, especially after converting to Christianity and founding dynasties—if only to avoid fouling their nest and leaving nothing to their heirs.

People thus entered a new environment of natural selection. A process of self-domestication began, as described by the historical economist Gregory Clark:

[…] societies becoming increasingly middle class in their orientation. Thrift, prudence, negotiation and hard work were imbuing themselves into communities that had been spendthrift, violent, impulsive and leisure loving. (Clark, 2009)

The above list leaves out another personality change. People began to show more empathy toward non-kin. Keep in mind that material success, and ultimately reproductive success, now depended on obedience to the law. And as the law became decontextualized and universalized, success went to those people who could understand universal rules, comply with them, and enforce compliance on others.

This predisposition to follow universal rules and live a rules-based existence might have been passed on culturally or genetically. Natural selection doesn’t “know” which is which, and in a traditional environment the outcome is quite similar. Whatever its cause, this predisposition would have gradually become more widespread with each passing generation. Clark (2009) does, however, make the case for at least partial genetic inheritance:

The chance a Danish adoptee would end up with a criminal record when neither set of parents had one was 13.5 per cent. When only the adoptive parent had a criminal record this chance rose very slightly to 14.7 per cent. However if only the biological parent had a criminal record the chance of the adoptee having a criminal record rose much more, to 20.0 per cent. If both sets of parents had a criminal record the chance of the adoptee having such a record was 24.5 per cent. Genetic influences on criminal propensities are much greater than environmental influences.

Such propensities might reflect weaker impulse control and a more present-oriented time orientation. But it could also indicate indifference toward others, especially non-kin, and a weaker ability to internalize and apply universal rules of conduct. Deceitful behavior in particular seems to have a significant genetic component (Barker et al., 2009). The shift to a high-trust society certainly involved learning new behaviors, but learning wasn’t the whole story.

References

Barker, E.D., H. Larson, E. Viding, B. Maughan, F. Rijsdijk, N. Fontaine, and R. Plomin. (2009). Common genetic but specific environmental influences for aggressive and deceitful behaviors in preadolescent males, Journal of Psychopathology and Behavioral Assessment, 31, 299-308.

Clark, G. (2009).The Domestication of Man: The Social Implications of Darwin, ArtefaCToS, 2, 64-80

http://campus.usal.es/~revistas_trabajo/index.php/artefactos/article/view/5427

Frost, P. (2010). The Roman State and genetic pacification, Evolutionary Psychology, 8(3), 376-389. http://www.epjournal.net/filestore/EP08376389.pdf

Lenox-Conyngham, A. (2005). The Church in St. Ambrose of Milan, International Journal for the Study of the Christian Church, 5, 211-225.

Wade, N. (2011). From ‘End of History’ Author, a Look at the Beginning and Middle, The New York Times, March 7.
http://www.nytimes.com/2011/03/08/science/08fukuyama.html?_r=2&hpw=&pagewanted=all

Williams, P. (1988). Kin selection, symbolization, and culture, Perspectives in Biology and Medicine, 31, 558-566.