Evicted, Convicted, Transported, Evicted, Convicted, Transported, and Sold:and Sold:

The Ethics of Disposable LaborThe Ethics of Disposable LaborBased on: Based on:

“The Dismal Science of Punishment: “The Dismal Science of Punishment: The Legal-Economy of Convict Transportation to the American Colonies“, The Legal-Economy of Convict Transportation to the American Colonies“,

The Journal of Law & PoliticsThe Journal of Law & Politics, Vol. XVIII, No. 4, Fall 2002, University of Virginia, Vol. XVIII, No. 4, Fall 2002, University of VirginiaBy Benjamin Balak & Jonathan Lave By Benjamin Balak & Jonathan Lave

The Dismal Science of The Dismal Science of PunishmentPunishment

17-1817-18thth centuries: centuries: 50,000 English prisoners sold in the 50,000 English prisoners sold in the

coloniescolonies Profit-maximizing for relevant interest Profit-maximizing for relevant interest

groups groups

2121stst century: century: Prison industry spinning out of controlPrison industry spinning out of control Self-justifying & self-perpetuating social Self-justifying & self-perpetuating social

mechanismsmechanisms Methodology: The idea that economics drives Methodology: The idea that economics drives

ethicsethics Radical:Radical: Society is a reflection of markets Society is a reflection of markets Commonplace:Commonplace: we are desensitized to its we are desensitized to its

implicationsimplications

Historical background:Historical background: 1588: Triumph over the Spanish Armada1588: Triumph over the Spanish Armada Elizabeth I: “Paupers are everywhere!” Elizabeth I: “Paupers are everywhere!” The enclosure movement (16-19th c.)The enclosure movement (16-19th c.) Crisis in English penal system: Crisis in English penal system:

Either corporal or capitalEither corporal or capital Need for intermediary punishmentNeed for intermediary punishment Solution: Convict transportationSolution: Convict transportation

1597 Act “for the Punyshment of 1597 Act “for the Punyshment of Rogues, Vagabonds and Sturdy Rogues, Vagabonds and Sturdy Beggars.”Beggars.”

The 1717 Transportation Act:The 1717 Transportation Act: Punishment fell into 3 categories: Punishment fell into 3 categories:

Shame by public whipping, stocks, etc.Shame by public whipping, stocks, etc. Branding &/or transportation (7 years)Branding &/or transportation (7 years) Death or transportation (14 years) Death or transportation (14 years)

Jails used for prisoners awaiting trial or Jails used for prisoners awaiting trial or punishmentpunishment

75% of convicted felons were transported75% of convicted felons were transported Before Act (1603-1717; 114 years): 5000-6000 convicts transportedBefore Act (1603-1717; 114 years): 5000-6000 convicts transported After Act (1718-1776; 58 years): 45,000 convicts transportedAfter Act (1718-1776; 58 years): 45,000 convicts transportedConvicts 1000

Transported (900)

Per year

500

(400)

(130)

1597 1660 1717-27 1776

(1) A response to the crime rate(1) A response to the crime rate If true, transportation should be correlated If true, transportation should be correlated

with crimewith crime Data reveals that the two are unrelatedData reveals that the two are unrelated

(2) An effective deterrent(2) An effective deterrent Might explain the passage of the ActMight explain the passage of the Act But:But: 1718-50: Transportation ∆↑, crime ∆↓1718-50: Transportation ∆↑, crime ∆↓

1750-76: Transportation ∆↑↑, 1750-76: Transportation ∆↑↑, crime ∆↑crime ∆↑

Zeitgeist: Considered an ineffective deterrentZeitgeist: Considered an ineffective deterrent Bigger and faster ships meant a safer journeyBigger and faster ships meant a safer journey Induced crime because colonial prospects were betterInduced crime because colonial prospects were better

Common Explanations / Common Explanations / JustificationsJustifications

for Convict Transportation:for Convict Transportation:

(3) A source of colonial labor(3) A source of colonial labor 1611: Virginia lobbied for convicts1611: Virginia lobbied for convicts After 1660: “these villaines attempt the After 1660: “these villaines attempt the

subversion of our religion, lawes, libertyes, subversion of our religion, lawes, libertyes, rights and proprityes” rights and proprityes”

1670s: Virginia & Maryland banned importation1670s: Virginia & Maryland banned importation Ban voided by the Transportation Act of 1717Ban voided by the Transportation Act of 1717 Continued to subvert transportation thereafterContinued to subvert transportation thereafter

To disincentive sellers: To disincentive sellers: Disclose each convict’s crime or pay £10Disclose each convict’s crime or pay £10 £50 bond to ensure convicts would not be dumped£50 bond to ensure convicts would not be dumped

To disincentive buyers: To disincentive buyers: £100 two-months bond to ensure good behavior £100 two-months bond to ensure good behavior

Demonstrates strong desire to be rid of convict Demonstrates strong desire to be rid of convict laborlabor1718-1775: convicts make up 25% of British immigrants1718-1775: convicts make up 25% of British immigrants

(4) A relatively humane punishment(4) A relatively humane punishment

Transportation was no pleasure-cruise:Transportation was no pleasure-cruise: 7-14 years of slavery7-14 years of slavery Almost 60% died before termAlmost 60% died before term Many died en-route (before 1750 14-20%; after 1768 4%)Many died en-route (before 1750 14-20%; after 1768 4%)

By 1717 imprisonment at hard labor was By 1717 imprisonment at hard labor was viableviable

But the government chose transportation (?!)But the government chose transportation (?!)

Historians have argued: Historians have argued: ““Workhouses were perceived as similar to slavery”Workhouses were perceived as similar to slavery”

Is involuntary labor for the public good closer to slavery Is involuntary labor for the public good closer to slavery than the sale of people for private use in far away than the sale of people for private use in far away lands?! lands?!

““Imprisonment was perceived as not stern enough”Imprisonment was perceived as not stern enough” Prison environments can be made as stern one wishesPrison environments can be made as stern one wishes

Government:Government: Transportation makes fiscal sense:Transportation makes fiscal sense:

Incarceration for 7 years cost £42- £273Incarceration for 7 years cost £42- £273Transportation (probably indefinitely) cost £5Transportation (probably indefinitely) cost £5

Undesirables were permanently removed Undesirables were permanently removed from societyfrom society

Jailers:Jailers: Assured payment for release of convictsAssured payment for release of convicts Enjoyed monopolistic power → high jailor’s Enjoyed monopolistic power → high jailor’s

feesfeesAware of merchants’ substantial profitsAware of merchants’ substantial profitsMerchants competed for valuable convicts Merchants competed for valuable convicts

Economic Interest GroupsEconomic Interest Groups

Merchants:Merchants:

Revenue (£13-30/convict)Revenue (£13-30/convict)

Government subsidy (£3-5)Government subsidy (£3-5)

Sale of Convicts (£10-25)Sale of Convicts (£10-25)

Costs (£6/convict)Costs (£6/convict)

Jail fee, Irons rental, Import duty (£2)Jail fee, Irons rental, Import duty (£2)

Crew, ship, port, & administrative costs (£4)Crew, ship, port, & administrative costs (£4)

Profit (£13 - £6 = £7/convict)Profit (£13 - £6 = £7/convict)

Rate of return: 117%(!)Rate of return: 117%(!)

Context:Context:

Shipload yields £400-500 in profitShipload yields £400-500 in profit

Noblemen earned £3,200/year Noblemen earned £3,200/year

Slavers attracted to the new Slavers attracted to the new business:business:Rates of return:Rates of return:

Slaves: 10-15%Slaves: 10-15% Convicts: 117%Convicts: 117%

Shorter voyagesShorter voyagesNo agents or factories in AfricaNo agents or factories in AfricaGuaranteed a steady supplyGuaranteed a steady supplySubsidiesSubsidiesLess riskLess risk

Additional sources of profit:Additional sources of profit:Return CargoReturn CargoEconomies of ScaleEconomies of Scale

Colonial Farmers:Colonial Farmers:

Lower labor costs with competitionLower labor costs with competition

Indentured servantsIndentured servants

Contractual control over types of workContractual control over types of work

Preferred manufacturing & household work in the north Preferred manufacturing & household work in the north

More expensive to maintain: 126-142%More expensive to maintain: 126-142%

Usually had a shorter term of serviceUsually had a shorter term of service

SlavesSlaves

Rural backgrounds: stronger & experiencedRural backgrounds: stronger & experienced

Much more expensive (300-500%) Much more expensive (300-500%)

Slave owners keep slaves in reasonably good health:Slave owners keep slaves in reasonably good health:

Maximize over lifespan of “capital”Maximize over lifespan of “capital” Take possession of healthy babiesTake possession of healthy babies

““Disposable labor”Disposable labor” Legal protection is determined by economic Legal protection is determined by economic

valuevalue Incentives to extract all possible labor out of Incentives to extract all possible labor out of

convictsconvicts Winter months were relatively idleWinter months were relatively idle Excess labor could only be held at costExcess labor could only be held at cost

The arrival time of ships:The arrival time of ships: Shipping guidelines (Rotterdam, 1718): Shipping guidelines (Rotterdam, 1718):

Land towards beginning of winter to acclimatize EuropeansLand towards beginning of winter to acclimatize Europeans Increases probability of surviving more than a year Increases probability of surviving more than a year

But most convicts arrived May-July:But most convicts arrived May-July: Labor demand for harvest was greatestLabor demand for harvest was greatest Life expectancy was shortest Life expectancy was shortest

High death rates did not pose a serious problemHigh death rates did not pose a serious problem ““Fresh” convicts readily available next seasonFresh” convicts readily available next season

Intermediate conclusions:Intermediate conclusions: Ethical considerations played little or no Ethical considerations played little or no

direct role in the practice of transportationdirect role in the practice of transportation… except as justifications… except as justifications

Practice driven by profits accruing to Practice driven by profits accruing to powerful economic interest groupspowerful economic interest groups

A self-perpetuating mechanism:A self-perpetuating mechanism:

Stopped in 1776 only by Stopped in 1776 only by necessitynecessityAustralia served as a substitute Australia served as a substitute Only subsided with the new Only subsided with the new “penal-industry” of incarceration“penal-industry” of incarceration

A hulk on the Themes, early A hulk on the Themes, early 19th c.19th c.

Orthodox penal Orthodox penal justificationjustification::

Utilitarian “calculus of pleasure and pain”:Utilitarian “calculus of pleasure and pain”:

Punishment must increase the overall social utilityPunishment must increase the overall social utility Retributive: Retributive:

Punishment must be Punishment must be appropriateappropriate to the crime to the crime

Signaling society’s ethical standards of conduct Signaling society’s ethical standards of conduct

Transporting an individual must thus:Transporting an individual must thus:

Increase the net utility in societyIncrease the net utility in society

Express the consensus on behavioral normsExpress the consensus on behavioral norms

Highly prescriptive but hardly descriptiveHighly prescriptive but hardly descriptive

Philosophical implicationsPhilosophical implications

Heterodox Heterodox explanationsexplanations of penal of penal practices:practices: Friedrich Nietzsche:Friedrich Nietzsche:

Punishment derives from economic Punishment derives from economic culture:culture:

LegalLegal punishment is an economy of power punishment is an economy of power JustJust punishment is equitable exchange punishment is equitable exchange

The “will to power” The “will to power” Nietzsche’s a priori social forceNietzsche’s a priori social force Drives individuals & institutions to Drives individuals & institutions to

accumulate and preserve legal power over accumulate and preserve legal power over legal subjectslegal subjects

Currency of power: Currency of power: potential or actual punishmentpotential or actual punishment

Michel Foucault (Michel Foucault (Discipline & PunishDiscipline & Punish, ‘77): , ‘77):

Societal structure ↔ forms of punishmentSocietal structure ↔ forms of punishment

Violence is endemic Violence is endemic

Needs to be controlled for the protection of society Needs to be controlled for the protection of society

Penal paradigms (technologies of “normalization”)Penal paradigms (technologies of “normalization”)

Retaliation (Middle-Ages)Retaliation (Middle-Ages)

Removal (Enlightenment) ← Removal (Enlightenment) ← missing in Foucaultmissing in Foucault

Incarceration (Industrial)Incarceration (Industrial)

Foucault misses the (economic) transitionFoucault misses the (economic) transition

Increased prominence of economic interestsIncreased prominence of economic interests

Commoditization of laborCommoditization of labor

Individualistic moral sensibilitiesIndividualistic moral sensibilities

Distance the act of punishment from publicDistance the act of punishment from public

The major function of criminal law in a capitalist society is to prevent people from bypassing the system of voluntary, compensated exchange—the “market,” explicit or implicit—in situations where, because The major function of criminal law in a capitalist society is to prevent people from bypassing the system of voluntary, compensated exchange—the “market,” explicit or implicit—in situations where, because transaction costs are low, the market is a more efficient method of allocating resources than forced exchange.transaction costs are low, the market is a more efficient method of allocating resources than forced exchange.

(Richard Posner, 1985)(Richard Posner, 1985)

The Contemporary Paradigm:The Contemporary Paradigm:Law & EconomicsLaw & Economics

A step beyond utilitarian A step beyond utilitarian justifications:justifications: Utilitarian: Punish to maximize social Utilitarian: Punish to maximize social

utilityutility Posnerian: Punish to socially engineer Posnerian: Punish to socially engineer

individual behavior in order to promote individual behavior in order to promote economic efficiencyeconomic efficiency

Applying Posner to convict Applying Posner to convict transportation: transportation:

The English peasants were evicted because the lord had found more efficient use for the land in the “voluntary, compensated exchange” of the wool industry The English peasants were evicted because the lord had found more efficient use for the land in the “voluntary, compensated exchange” of the wool industry

Since the manufacturing industry was in its infancy, these displaced people could either beg or commit crimes, and, in so doing they were “bypassing” the market Since the manufacturing industry was in its infancy, these displaced people could either beg or commit crimes, and, in so doing they were “bypassing” the market

Irony: paupers were legally tied to their parish and thus prevented from selling their labor at another market Irony: paupers were legally tied to their parish and thus prevented from selling their labor at another market

Prescription: ship them to the colonies!Prescription: ship them to the colonies!

The direct cost of transporting them is very lowThe direct cost of transporting them is very low

The opportunity cost of removing them from society is nilThe opportunity cost of removing them from society is nil

They would have more opportunities in the New WorldThey would have more opportunities in the New World

Honorable gentlemen are earning high returnsHonorable gentlemen are earning high returns

Marginal Costs < Marginal BenefitsMarginal Costs < Marginal Benefits

QED QED

A step beyond retributive justifications:A step beyond retributive justifications: Recall: retributive punishment as signaling Recall: retributive punishment as signaling

mechanismmechanism Individuals & institutions seek to justify their Individuals & institutions seek to justify their

powerpower Nietzsche & Foucault: Nietzsche & Foucault:

Universal ethical foundation for punishmentUniversal ethical foundation for punishment Moral systems evolve to hide the mechanisms of powerMoral systems evolve to hide the mechanisms of power They divorce actual power structures from interest groupsThey divorce actual power structures from interest groups SpecificallySpecifically: :

Crime and punishment are logically linked:Crime and punishment are logically linked:

Punishment is caused by the crime Punishment is caused by the crime It is the crime itself & not an institute that It is the crime itself & not an institute that

punishespunishes No discussion of the politics of punishment No discussion of the politics of punishment

ApplicationApplication: Mandatory sentencing: Mandatory sentencing

Explicitly designed to limit judges’ ability Explicitly designed to limit judges’ ability to make contextual judgmentsto make contextual judgments

Assumes criminals are “rational agents”Assumes criminals are “rational agents”

Why does the US keep Why does the US keep over 2 million people over 2 million people behind bars?behind bars?

Underlying social & Underlying social & economic problems?economic problems? Criminals rationally Criminals rationally choose crime because:choose crime because:

Expected cost of crime < Expected benefit Expected cost of crime < Expected benefit of crimeof crime

Solution: Increase their expected costs & they Solution: Increase their expected costs & they will rationally & voluntarily choose a virtuous will rationally & voluntarily choose a virtuous lifelife

Incarceration: Transportation version 2.0Incarceration: Transportation version 2.0 Civic society in a crisis of justification:Civic society in a crisis of justification:

Declining political participationDeclining political participation Increasing incarceration ratesIncreasing incarceration rates

Economic value determines legal protectionEconomic value determines legal protection Arguments for increased penal efficiency:Arguments for increased penal efficiency:

E.g. prison privatization, cost minimization, etc.E.g. prison privatization, cost minimization, etc. Punishment at a lower costPunishment at a lower cost Prisoners become commoditiesPrisoners become commodities

Does this ethically cohere with our Does this ethically cohere with our perception of punishment in our free & perception of punishment in our free & enlightened civilization?enlightened civilization?

Conclusions:Conclusions: