Doctrine of Impossibility in Contracts Introduction This essay will consist in an attempt to analyse the doctrine of impossibility and its operation in relation to contracts. It will look closely at both the concept of initial impossibility arising from a common mistake on the part of both parties as to the state of things before the contract was agreed and the concept of subsequent impossibility and frustration. The latter deals with a situation whether the parties enter into agreement on terms both express and implied and then a supervening event renders the performance of that agreement radically different from that which was envisaged by both parties at the outset. These themes will be discussed in greater detail in the first section and will run throughout the work. The essay will examine the concept of objective and subjective impossibility, and the rules relating to discharge of contractual obligations and allocation of risk. It will look at the situation when either the subject matter or a thing essential for performance is destroyed or unavailable, either partially or completely. It will then look at how the death or supervening incapacity of a party will affect a personal contract. Towards the latter part of the essay, it will discuss the problems that arise when a method of performance becomes impossible or a particular source becomes unavailable. It will conclude by looking at the effect of delay and temporary impossibility on a contract. The concept of impossibility The concept of impossibility in contract law can be split into two distinct categories. There are the cases where the parties never actually reach a true agreement because they are mistaken as to some element of the contract before the contract is concluded and the cases where the contract becomes impossible to perform subsequent to the agreement having been reached. Generally speaking, in the first instance, the contract is void ab initio and in the second, an otherwise valid contract is brought to an end from the point when the impossibility arises. A basic example to illustrate the difference would be a contract for the sale of a car. If unknown to the parties, the car had blown up 5 minutes before the contract was signed the contract would be void ab initio, whereas if the car blew up 5 minutes after the contract was signed, the contract would be valid, but brought to an end by the fact that its subject matter no longer existed. Essentially the courts are implying into the contract a condition precedent that the subject matter exists and is capable of transfer. This concept of implied condition precedent has been regarded with considerable scepticism among commentators in light of the traditional common law view that the courts should neither make nor amend a bargain. The main problem arises when dealing with the first type of impossibility. It is not always entirely clear how the courts will formulate the implied condition precedent. Smith and Thomas suggest three possibilities: A impliedly promised B that the thing existed. A impliedly promised B that he had taken reasonable care to ascertain that the thing existed. A and B proceeded on the common assumption, for which neither was more responsible than the other, that the thing existed and its existence was a condition precedent of the contract. Which of these options it will be, depends largely on the relative means of knowledge of the parties and whether one is relying on the other. This will be discussed at length through the course of the work. It also may be that on proper construction of the contract either, or both of the parties have made absolute promises. In that event, the courts will not excuse non-performance for either type of impossibility. There are also cases where the contract has not become entirely physically or legally impossible, but an event has occurred which â€œstrikes at the base of the contract so as to frustrate its purpose.â€ This is commonly referred to as frustration and it operates as a form of subsequent impossibility. Objective and Subjective Impossibility The contract will have to be objectively impossible to perform before it is held to be void. The case of Thornborow v Whitacre (1705) 2 Ld Raym 1164 held that a party cannot escape liability on the grounds of impossibility purely relating to his individual ability or circumstances. Neither will he be discharged from his obligations simply because he finds the contract particularly difficult or onerous to perform: â€œIt is not hardship or inconvenience or material loss itself which calls the principle of frustration into playâ€ Subsequent impossibility will similarly not excuse the parties from performance if it was brought about by the conduct of one of the parties. The case of Southern Foundries (1926) Ltd v Shirlaw  AC 701 held at 717 per Lord Atkin: â€œâ€¦conduct of either promisor or promisee which can be said to amount to himself of his own motion, bringing about the impossibility of performance is in itself a breach.â€ Clearly, any impossibility that can be attributed to either party will be considered a breach of contract and the defaulting party will become liable in damages in the usual way. Where the impossibility brought about by one of the parties existed at the time of the contract he is likely to be held to have warranted possible performance of the contract and held to be in breach of that warranty. As discussed above it is sometimes possible for the courts to hold that a party made an absolute promise and therefore accepted the risk of the fact that the contract might be impossible to perform. Whether a contract is considered to be absolute will be a matter of objective construction of the terms of the contract. If the contract is held to be absolute, the party will be held to his performance whether or not the impossibility is his fault or not. In the case Paradine v Jane (1647) Aleyn 26 a lessee was held liable to pay rent even though he had been evicted from the property by armed forces during the civil war. A lease is a type of contract that is commonly regarded as being objectively absolute without reference to the subjective intentions of the parties. Overall the contract must be objectively impossible to perform, the subjective views of the parties as to their circumstances and their personal ability to perform the contract will not usually be taken into account. Similarly, if a party is active in bringing about the impossibility the contract will not be seen as objectively impossible, but as having been breached. Conversely, some contracts will be held to be objectively absolute and the subjective intentions of the parties in forming the contract and their level of fault in bringing about the impossibility of performance will not be relevant. Destruction of the Subject Matter In the case of Taylor v Caldwell (1863) 3 B S 826 the claimants granted the defendants the use of a music hall and gardens for a series of music concerts. After the contract had been concluded, but before the concerts had begun the music hall was destroyed by fire and the concerts could no longer be held there. The claimants argued that the defendants were in breach of the contract for failing to provide the music hall and sought to recover Â£58, which they had spent on advertising the concerts. The courts however held that the contract had become impossible to perform and was therefore frustrated. Both parties were therefore released from their obligations under the contract. In coming to this conclusion Blackburn J referred to the dicta of Pothier stating that: â€œThe debtor is freed from obligation when the ting has perished, neither by his act nor his neglect and before he is in default, unless by some stipulation he has taken on himself the risk of the particular misfortune which has occurred.â€ He recognises that the civil law is not binding on English Courts, but states that it is a useful indicator of the principles on which the law is grounded. Blackburn J also refers to a line of authority involving bailment. For example the case of Williams v Lloyd W.Jones 179 the claimant had delivered a horse to the defendant on the condition that it be returned on request. Without fault on the part of the defendant, the horse became sick and died and was therefore not able to be returned on the request of the claimant. It was held that bailee was discharged from his promise by the fact that the horse had died. Blackburn J stated that it was a settled principle of English law that in contracts for loans of chattels or bailments, if the promise of the bailee or borrower to return the goods becomes impossible because the goods have perished through no fault of his own, the bailee is excused from this promise. It is noted that in none of the cases relating to bailment was it expressly agreed that the destruction of the subject matter would release either party from their obligation, â€œthe excuse is by law impliedâ€  This principle established in Taylor and subsequent cases is now contained in section 7 of the Sale of Goods Act 1979 â€œWhere there is an agreement to sell specific goods and subsequently the goods, without any fault on the part of the seller or buyer, perish before the risk passes to the buyer, the agreement is avoided.â€ Partial Destruction of the Subject Matter It is interesting to note that the contract in Taylor was for the use of â€˜Surrey Music Hall and Gardensâ€™. It was therefore only part of the subject matter that was destroyed by the fire; the gardens were still in tact. However, it was held that the destruction of the music hall rendered performance of the contract impossible. This implies that when part of the subject matter is destroyed the courts will investigate the purpose of the contract. If the part that is destroyed renders that purpose impossible the contract will be held to have been frustrated by its destruction. Discharge and Rules Governing Risk As discussed above a contract, which is the subject of a mistake made by both parties prior to its formation that makes performance impossible, will be void ab initio. This is not the case if the impossibility arises after the formation of the contract, i.e. the contract is frustrated. In that event, the contract is said to be discharged from the time when the frustrating event arose. The parties are discharged from any future performance without having to elect that that will be the case. Where the core of the contract is the happening of some future event and that event is cancelled the time of frustration will be the time when the cancellation is announced. In the case of Krell v Henry  2 KB 740 the defendant hired a flat on Pall Mall to watch the coronation procession of Edward VII, though this purpose was not expressed in the contract. The procession was cancelled before the formation of the contract, but the announcement was not made until after the contract had been agreed. If the contract is severable, it may be that only part of the contract is frustrated and the other parts remain in force. It seems that even when an entire contract of sale is held to be discharged because it has become impossible to deliver some of the goods, the buyer can â€˜waiveâ€™ this and demand delivery of the rest of the goods. This was the case in HR S Sainsbury Ltd v Street  3 All ER 1127. Supervening events may also make the suspend the contract without actually discharging it. Temporary impossibility will be discussed in greater detail in a later section. Furthermore, illegality may frustrate a minor obligation without discharging the entire contract. The implications of things like this for a potential doctrine of partial frustration will also be discussed later. The essay will now go on to look at who should bear the risk and hence the loss of a frustrating event. For a long time it was thought that the losses resulting from the frustration of a contract should lie where they fell. This led to the conclusion that any money paid before the frustrating event occurred was irrecoverable and conversely any money already due under the contract for services provided was enforceable. In the case of Chandler v Webster  1 KB 493, CA, a room was hired to view the coronation procession, the price being payable immediately. When the procession was cancelled, Â£100 had been paid on account. It was held that the contract was frustrated thereby releasing the parties from further performance, but leaving promises performable before the frustrating event still standing. On the other side a party who had only partially performed the contract could not recover anything for his services even when he had conferred a benefit on the other side. It is possible however that a party who, after a frustrating event, takes reasonable steps to protect the other partyâ€™s interest will be entitled to recover remuneration for his expenditure on a restitutionary quantum meruit basis. This was the case in SociÃ©tÃ© Franco-Tunisienne dArmement v Sidermar SpA  2 QB 278. Until 1942 it was also considered that there could be no recovery for total failure of consideration. This was on the basis that up until the point of frustration the party who had paid any money had the benefit of a executory contractual promise and that was consideration enough. However, in the case of Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd  AC 32 the House of Lords held that a party could recover where there had been a total failure of consideration. This was an improvement on the Chandler position discussed above, but two principle defects in the law remained. The first was that the principle only applied when there was a total failure of consideration; where there was a partial failure the claimant could not recover anything. The second defect was that the payee could not set off any expenditure that he had incurred in the performance of his side of the contract. These defects were rectified by section 1(2) of the Law Reform (Frustrated Contracts) Act 1943. The subsection states: â€œAll sums paid or payable to any party in pursuance of the contract before the time when the parties were so discharged (in this Act referred to as â€œthe time of dischargeâ€) shall, in the case of sums so paid, be recoverable from him as money received by him for the use of the party by whom the sums were paid, and, in the case of sums so payable, cease to be so payable: Provided that, if the party to whom the sums were so paid or payable incurred expenses before the time of discharge in, or for the purpose of, the performance of the contract, the court may, if it considers it just to do so having regard to all the circumstances of the case, allow him to retain or, as the case may be, recover the whole or any part of the sums so paid or payable, not being an amount in excess of the expenses so incurred.â€ This deals with the defects in the common law by stating that monies paid before the frustrating event are recoverable, sums payable prior to the time of discharge cease to be payable and the payee is entitled to set off expenses reasonably incurred in their performance of the contract. Goff and Jones note that whilst the Act does deal in outline with the deficiencies of the common law it does not completely resolve the issues. For example, the Act does not say what principles the court ought to employ to decide how much the payee is entitled to set off. In the case Gamerco SA v ICM/Fair Warning Agency Ltd  1 WLR 1226 Garland J felt that the courtâ€™s task was to: â€œâ€¦do justice in a situation which the parties had neither contemplated nor provided for, and to mitigate the possible harshness of allowing all loss to lie where it has fallen.â€ Section 1(2) does permit the payee to recover or retain more than he has been paid up to the tine of frustration. I.e. for expenses incurred in expectation of future payment. They may be able to recover such expenditure under section 1(3), which takes effect when one party has conferred a valuable benefit on the other party (other than money) before the time of discharge. In that event, he will be able to recover a just sum, which shall not exceed the value of the benefit conferred. Robert Goff J held in the case of BP v Hunt  1 WLR 783 that there were two steps to assessing a claim under section 1(3), the first was identifying and valuing the benefit conferred. Goff J held that usually the benefit would be the end product of any services. In some contracts the services were the end product themselves, for example, a contract for the transportation of goods. He held that if the end product is destroyed by the frustrating event then no benefit is conferred because the other party does not have the product either. This interpretation has been heavily criticised as failing to give effect to the intention of the Act. This section of the Act was intended to mitigate against the harsh consequences of the common law rule of â€˜entire obligationsâ€™. In the case of Appleby and Myers (1876) LR 2 CP 651 the claimants contracted to make machinery in the defendants factory and to maintain the machinery for two years. Payment was upon completion of the work. After part of the machinery had been erected, a fire destroyed the whole factory and all the machinery. The claimants could not recover anything, as they had not completed the work. Goff Jâ€™s interpretation of section 1(3) would lead to the same result. However, this interpretation has also been adopted in the Commonwealth. It does appear to accord closely with the wording of section 1(3), which draws a distinction between the performance by on party and the benefit conferred on the other. This implies that the claimant must actually have received the benefit of any performance on the part of the defendant before the defendant can recover or retain any money. The second step Goff J laid down was the measurement of a â€˜just sumâ€™. Contractual allocation of risk will of course be a factor. Goff J thought that it ought to be as much as is necessary to prevent the unjust enrichment of the other party. This approach was rejected by the Court of Appeal in the same case, who simply held that it was in the almost unrestricted discretion of the trial judge. In conclusion, the Act is sadly deficient in its guidance as to the allocation of risk and loss between the parties to a contract that has been discharged for frustration. It is possible for the parties to allocate the risks contractually. This is one of the main reasons that the courts have kept a tight reign on the doctrine of frustration. Parties are expected to be able to foresee the possibility of dramatic price increases and the outbreak of labour disputes etc. Contracts therefore regularly include clauses which allocate the risk of such an unforeseen event occurring. One common example is a â€˜force majeure clauseâ€™. In the case of Channel Island Ferries Ltd v Sealink UK Ltd  1 Lloydâ€™s Rep 323 the relevant clause stated: â€œA party shall not be liable in the event of non-fulfilment of any obligation arising under this contract by reason of Act of God, disease, strikes, Lock-Outs, fire and any accident or incident of any nature beyond the control of the relevant party.â€ The advantages of such clauses are that they provide a degree of certainty and the parties can agree to a wider range of circumstances than are currently available under the doctrine of frustration. For example, an unexpected increase in prices is not considered to be a frustrating event, but it is common in a commercial contract to see a force majeur clause containing provision for â€˜abnormal increase in prices and wages.â€™ It also allows the parties to determine their future relationship. The frustration doctrine discharges the contract regardless of the wishes of the parties, but they can provide for a continuing, adapted relationship if they so wish. Unavailability of the Subject Matter Where both parties are mistaken as to the availability of the subject matter at the time of the contract, this may be sufficiently fundamental to avoid the contract. The leading case on this issue is that of Courturier v Hastie (1856) 5 HLC 637 in which the parties entered into a contract for the sale of a cargo of corn, which was believed to be in transit from Salonica to England. Unknown to both the parties, the cornâ€™s quality had deteriorated to such an extent that the master had sold it. The House of Lords held that the matter turned on the construction of the contract concluding that: â€œThe contract plainly imports that there was something which was to be sold at the time of the contract, and something to be purchased, no such thing existing,â€¦ judgment should be given for the defendants.â€ The exact legal basis for importing this term has been the subject of some debate among commentators and will be discussed briefly now. The draftsmen of section 6 of the Sale of Goods Act 1979 appear to have interpreted the decision as stating that a mistake as to the existence of the subject matter of the contract inevitably renders it void: 6 Goods which have perished Where there is a contract for the sale of specific goods, and the goods without the knowledge of the seller have perished at the time when the contract is made, the contract is void. The court in Couturier did not however mention the word mistake; they based their reasoning on the construction of the contract and the fact that there was a total failure of consideration on the part of the sellers. Lord Denning applied a different interpretation in the case of Solle v Butcher  1 KB 671 at 691 in which he held that there was an implied condition precedent that the contract was capable of performance. He reasoned that in Couturier the parties had proceeded on the assumption that the goods were capable of being sold, when in fact they were no longer available for sale. Lord Denningâ€™s interpretation does seem to give effect to the most likely intention of the parties. However, in the absence of a clear intention to release each other from the agreement if the subject matter is not available, it is not clear when Lord Denning is suggesting a term of this nature should be implied into the contract. The third interpretation is that whether or not the contract will be void, depends on the its construction. This was the interpretation put on Couturier by the High Court of Australia in the case of McRae v Commonwealth Disposals Commission 84 C.L.R. 377. The defendants invited tenders for the purchase of an oil tanker described as lying on the Jourmand Reef off Papua, together with its contents, which were stated to be oil. The Claimants won the tender and spent a considerable amount of money modifying a vessel for the salvage work. In a bizarre turn of events it was later discovered that no such tanker had ever existed. The court held that: â€œThe only proper construction of the contract is that it included a promise by the commission that there was a tanker in the position specified.â€ On that construction the Commission had assumed the risk of the tanker not existing. They distinguished Couturier, holding that this was not a case in which both parties had entered the contract on a common assumption. The Commission had assumed the existence of the tanker, but the buyers had only relied on their assertion. In policy terms there can be little doubt that the approach taken in McRae is a sound one and one which ought to be followed by the English courts, but its is somewhat difficult to reconcile with section 6 of the Sale of Goods Act. There is the possible argument that McRae does not fall under section 6 because the tanker had never existed and therefore could not have â€˜perishedâ€™. This distinction does seem somewhat artificial and not within the intention of the court in McRae. If the subject matter becomes unavailable after the contract has been concluded this may also render the contract frustrated for impossibility. For example in the case of Bank Line Ltd v Arthur Capel Co  AC 435 a charterparty was held to be frustrated when the ship was requisitioned and so unavailable to the charterer. Temporary unavailability may also suffice, but this will be discussed later. Destruction or Unavailability of a Thing Essential for Performance Lord Atkin in the case of Bell v Lever Brothers Ltd [ A.C. 161, discussed the circumstances in which one might wish to imply a condition into the contract. He states that a condition derives its efficacy from the consent of the parties, express or implied. He supposes a possible term: â€œUnless the facts are or are not of a particular nature, or unless an event has or has not happened, the contract is not to take effect.â€ If there are express words in the contract such as â€˜a foundation essential to the existenceâ€™, there need not be any further enquiry, but when there are no such words the court must investigate the circumstances of the agreement to see whether any such condition can be implied. Lord Atkin uses the example of the hire of a professional vocalist whose continued health would be essential to the performance of the contract. The case of Krell v Henry  2 KB 740 has been discussed earlier. For present purposes it can be described in the following terms: The contract was for the hire of a room on Pall Mall to watch the coronation procession of Edward VII. The subject matter of the contract was the room and that was still in tact. However, the purpose of the contract was to watch the procession and without the procession the contract was not capable of full performance. Vaughn Williams LJ refers in his judgment to the case of Nickoll v Ashton  2 K.B, which is authority for the proposition: â€œ English Law applies the principle not only to cases where performance of the contract becomes impossible by the cessation of existence of the thing which is the subject matter of the contract, but also to cases where the event which renders the contract incapable of performance is the cessation or non existence of an express condition the continued existence of which is necessary for the fulfilment of the contract, and essential to its performance.â€ This concept was extended in Krell to include a situation in which that particular set of circumstances (the viewing of the coronation) was not expressly mentioned in the contract. The contract in Krell was, however a strange one; the room was only hired out by the day, not the night, and the purpose for the contract on both sides was the viewing of the coronation. It is clear that the particular set of circumstances must have been in the contemplation of the parties and one that they both realised was necessary for the full performance of the contract. There is some dispute surrounding the Krell case. Cheshire and Fifoot point out that the cancellation was probably not in the contemplation of the parties, but with regard to the proposition that the buyer should be discharged from his obligation to pay on cancellation: â€œIt is incompatible with the character of a hard bargainer to say that the owner of the room would have agreed to this proposal if it had been put to him during negotiations.â€ It is more likely that the owner would have told the hirer that that was a risk he would have to take. It seems somewhat unreasonable to import to the seller a state of mind which he may well not have been in had he thought about it. McElroy and Williams, on the other hand say that the contract was impliedly for the hire of â€œrooms to view the processionâ€, the fact that there was no procession therefore amounted to a complete failure of consideration on the part of the owner of the rooms, discharging the hirer from his obligation to pay. The circumstances in which Krell will apply are extremely limited. The set of circumstances, which the parties assume to be continuing, must be the common foundation of the contract. In the case of Herne Bay Steamboat Co v Hutton  2 KB 683 the claimant hired a ship from the defendant to watch the naval review and for a dayâ€™s cruise around the fleet. After the contract, the naval review was cancelled owing to the same illness of Edward VII, but the contract was held not to have been frustrated. This is thought to be because the hirer could still see the fleet and the boat had not been hired out by the owner for the specific purpose of seeing the Naval Review. This meant that seeing the Naval Review was not the common purpose of the contract and its cancellation was not therefore a frustrating event. Thus interpreted, Krell can be seen as a very narrow decision and as indeed been distinguished in more recent cases. The Death of a Person Essential to Performance In the case of Galloway v Galloway (1914) 30 TLR 531 the defendant thought that his first wife had died and married the claimant. The defendant and claimant subsequently separated and entered into a deed of separation under which the defendant agreed to pay the claimant a weekly sum in maintenance. The defendant then discovered that his firs
Michella Abel ANTH4113-001 10/16/12 Professor Dowell & Hirschfeld Capstone Anthropology Prison Food Chain The United States has had reform after reform of their prison systems in an attempt to better them and in hopes of making them not only a punishment, but a rehabilitating system. The prisons of today are not what these reforms hoped to achieve, they are over populated, dangerous, and under-funded. Gangs have taken over the positions that wardens are supposed to fill and they rule by survival of the fittest or at least survival of the better connections.In order to achieve the reformsâ€™ goals, data collected from ethnographic and statistical studies must be put to better use. Prison gangs have become a huge contributing factor to the overcrowding within the prisons due to its positive correlation to repeat offending and high recruitment efforts. The word Penitentiary comes from the Greek word that means to be penitent. The reality of what it is like to be in a prison may not be what most people believe it to be. There are different levels in the prison system that offenders, pending on their crime and record, will be assigned to. Marchese,45) Super-max Prisons are for the worst of the worst offenders. Maximum security houses a variety of violent offenders. Minimum security and halfway houses restrict the comings and goings of the lowest menace threat in the system and help to make an offender ready to rejoin the outside world. The prison society is based upon a set of social rules and boundaries built and based upon respect and fear. Each kind of prisoner has a different way of obtaining this respect and attempting to claim the prison food chain.A prisoner that was transferred would need to fight another prisoner to establish his place among the hierarchy. Prisons are a society unto themselves and outsiders are not welcome as scientists and journalist have discovered. (Fleisher,1989) To be a prisoner and be at the top of the hierarchy has multiple meaning for that individual, how he got there and how he keeps that position varies from one inmate to the next. Every inmate at the top of the food chain in the prison system has his or her own story as to how they got where they are, and how long it took them to get there, but he common thread is their gang connections and affixations. The top of the hierarchical system however are the guards. The guards are one of the prisonersâ€™ only interactions with the outside world that is guaranteed and occurs on a regular basis. The Stanford Experiment in (1971) showed how guards and prisoners interact on the bases of who has the authority and who doesnâ€™t. Stanford students played the role of guards and some as prisoners. It didnâ€™t take long before the students started to really believe they were guards or prisoners.The student guards became more forceful in their commands, and showed less respect for the students that were prisoners. The student prisoners showed more compliance for the guards and submissive, even thou they were just role playing. The experiment was forced to release all of the participants after the students playing the role of the prisoners started to riot and entrench themselves within the cells. Their ability to separate reality from their roles was so greatly diminished they actually started attacking each other.There are theories that this diminishing started when they were all very publically arrested for show, but to them it felt very real. (Zimbardo) Fleisher attempted to study the prison society by becoming a guard at a prison, but soon discovered that even he could not separate himself from the role of a guard, â€œI began to think of myself as a correctional workerâ€¦ I was becoming lostâ€¦ What hacks did was right what convicts did was wrongâ€. (Fleischer,1989,112) There are federal cases in which inmates claim that guards either go to far to prevent gang activity or donâ€™t do anything at all to protect them.Babock vs. White and Doe vvs. Welborn are both 8th amendment violation cases in which the guard knowingly put an inmate in harmâ€™s way with a gang, but with the overpopulation some do not have an option of where an inmate is housed despite the danger. (Eckhart,61) A prison guard is not a police officer and cannot arrest anyone. They are babysitters for some of the most dangerous people in the world. Prisoners can and do hurt or even kill guards every year; however, there have been documented cases of guards beating and killing prisoners who attack guards.If an inmate gets away with something like killing or attacking a fellow inmate, it was because one or more of the guards protected him. Inmates cannot be prosecuted if the guards do not speak up and turn in the inmate committing the acts. That is a system that gives the guards a great deal of power over the men in their custody. (Marchese,1) Someone looking at a penitentiary from the outside couldnâ€™t ever imagine the set of circumstances that an inmate faces the moment they step foot behind the gates. The single biggest threat to a new inmate is the gang affiliation and if the guards recognize you as gang member.Gangs are stronger in the prison systems than anywhere on earth. They can quickly tell a new inmate from a repeat by talking to you for a few minutes and by the confidence level the inmate portrays. Then the recruitment begins. If the new inmate wasnâ€™t part of a gang on the outside, he is very vulnerable and has to make some fast decisions. He can attempt to remain gang free, which is very dangerous since that means you have no one looking out for you, or you have to join a gang and they choose you, you donâ€™t choose them. (National Geogrpahic,2007) Race is the gang of choose in prison.Whites stick together and blacks with blacks and so on. Most sections of the prisons facilities are divided up into the race sections for each race. Whites use these three showers and these three stales and so on. White, African American, Mexican, and Other (Native American or Asian) are the more commonly used terms when prisoners are dividing the prison into race. If you get rejected from that gang you will not be allowed to join any other white gang, and a prisoner without a gang is typically beaten, raped, or killed by the enemies you acquired while in the gangs.If you fail to join a gang from the start you are more likely to be in danger from your own race. Mostly because they have asked you to join their gang and you have refused. When you have so many dangers threatening you every day of what is now your life, joining a race gang and fighting becomes the only way to stay alive in the current prison system. Think about who is in prison. Most inmates are killers and rapist and burglars already, so the things that go on in prison isnâ€™t new to them, but the ones that are in prison for something non-violent have to share the same space as those who have committed murder and rape.Inmates who are not violent are targets for the life term inmates just because they want to have the power over someone, just as the guards have power over all inmates. The control issues donâ€™t stop there. To be in the gang you have to prove yourself to be worthy to be in the gang. Most acts of worth involve you beating someone up, and sometimes killing someone who has disrespected the gang recently. You can move up in the ranks very quickly in the prison gang hierarchy pending on the nature of your sentence. Lifersâ€ are known as inmates that will never see the outside world again, meaning they will die in the prison system. They know that a â€œliferâ€ is more likely to kill, then someone who has only a few years to serve. â€œLifersâ€ become some of the most powerful people in the prison hierarchies because they are more willing to kill you because they will never see freedom anyway. (Yost,2010) Incidentally women prisons do not necessarily work the same as men. Many do have gang ties outside of prison, the same gangs as the men, but the connections that make while in prison are tighter than the gangs.They set up family like groups and the longer term inmates adopt children and watch out for them. They do have to follow their gang rules while in prison. If fellow gang member is attacked or disrespected you better do something about it. (Yost,2010) The guards will automatically segregate gang members from the general population in small prisons, but the larger prisons are overcrowded and do not have space available to segregate them all. They have everyone from drug addicts with no violent recorded to murderâ€™s and rapist in the same common areas and cells.Guards in the super-max facilities automatically place gang members in the SHU or Security Housing Unit. The super-max facilities are where known gang members and violent inmates are sent because they have been deemed too large of a security threat to be housed in minimum security prisons. The guards will take the tiniest connection of gang affiliation and run with it. (Tachiki,1118) However, these super-max and segregation cells are not doing the job that are meant to do. The leaders of these gangs are able to carry on gang business from within these cells.For example, the Mexican Mafia can extort drug dealers because they pose a threat to the people in system and drug dealers know that are likely to end up in prison and with individuals only in segregation for a few days or weeks at a time notes can be passed containing hit lists. (Skorbek,714) Prison gangs started back in the 1950â€™s with the Gypsy Jokers in Washington State Prison. The Mexican Mafia emerged in 1957 in California and was the first gang to have nationwide ties consisted of Northern California Mexicans.These gangs started out just as a way of protecting themselves from the other races, but they soon started using their numbers and influence to run the black market within the prisons. The Aryan Brotherhood is a white supremacist gang that started in California in 1967 at San Quentin. The Black Guerilla Family combined all the black rights groups of 1966 in San Quentin. La Nuestra Family was established in the 1960s in Californiaâ€™s Soledad for the southern California Mexicans. The Texas Syndicate emerged in 1958 at Deuel Vocation Institute in California to protect the Texan Mexicans and native Texans.The Mexikanemi is the fastes growing established in 1984 and also known as the Texas Mexican Mafia. The Newest gangs being the Nortenos, The Surenos, and the Crips and Bloods from LA. (Fleisher,2001,#1)(Morningstar,1-4) The reasons for joining a gang are many, but all very similar. Individuals join gangs for protection from other gangs or from the gang itself. This situation lends to the old phrase â€œIf you canâ€™t beat them join them. â€ There is also the very human variable: the need to fit in and feel wanted.Individuals will join a gang because even though it is a bad identity it is still more than what they had before and even though the company is bad and dangerous they feel like they belong. The rules that the gangs enforce are all slightly different but are based on the same basics and this does supply these individuals with structure that their lacking. The basic rules are always bare your allegiance, always respect other members, always protect other members, always support the gang, always obey the gang, secrecy, and the most known blood in, blood out.In other words, you are a gang member for life and the only escape is death and most of the time a young one. (Fleisher,2001,#1,3) The process of joining a street gang is very different than joining a prison gang. A street gang the individual is mostly likely jumped in and that in tells letting all the members beat up on them for a certain amount of time a few minutes at a time. Whereas a prison gang the individual would be asked to fight a certain individual or a guard. It also might be as simple as smuggling a note out or crafting a leader a shank and hiding it for them.In many cases, they are required to take out a member of a rival gang either by getting them locked up in segregation for a few weeks and hurting their operation or simply killing them. (National Geographic,2007) The newer gangs are based on more criminal organizations than a true sense of word gang. They are in it for the profit and run the black markets. Only 15-20% are hard core members the rest are foot soldiers that are expendable. The reasons for defecting from a gang seems more like a cheesy movie scene where the character is debating between going against their own moral code and killing a child.If they donâ€™t kill the mark then they are next on the list and are hunted down. There are a few that go to the state for protection for exchange for the testimony and witness protection. The most common reason for defecting from a gang is that the individual broke a rule and are scarred of retribution so they go to the state. They either stole gang money/product or they slept with wrong personâ€™s wife/girlfriend. (Fleisher,2001,#1,3) There are prison programs that force the inmate to renounce their gang affiliations and sign a written contract affirming their defection.These programs allow the prisoners to be released earlier, but they also force many inmates to become serious targets. (National Geogrpahic,2007) Inmates fear these programs because in order to graduate from the programs they are forced to relinquish the only identity they know. Prisons are their own culture in and of themselves. They vary from prison to prison and have been described as small city with all the intricacies that come with one. They use their own form of language when communicating to each other and with those on the outside. The breaking of gang code is its own department within the FBI.They have even started using texting abbreviations within their codes. (Klivans,1) There are whole alphabets to the prison gang code and they also utilize their own form of sign language. Most of them use their tattoos to tell their stories and to inform other gang members of just where they belong within the hierarchy. They also most bare their gangs sign. Most prison gangs use tattoos simply because they look menacing and the guards canâ€™t remove them. The street gangs use bandanas or colors, which is near impossible to replicate within a prison. National Geographic,2007) We have implemented multiple prison programs from education to religion. One of the interesting ones described in the documentary The Dhamma Brothers is a 10 day program that a group of inmates many of which that are on death row are secluded from the rest of prison population and are instructed in the practices of Buddhism. They were not so much instructed on the religious practices and beliefs, but on the deep meditating practices that help them focus and deal with emotions. The prisons showed a remarkable difference in both attitude and behavior after they experienced 10 days of complete silence and meditation. Kaikum,2008) Another program started in Luther Luckett Correctional complex has focused on rehabilitating their inmates through education. One of their programs is called Shakespeare Behind Bars. This program was designed to get the inmates interested in classics and possibly keep them out of trouble during the production of the plays. A group of inmates are allowed to produce plays by Shakespeare and perform them for the prison. They have an instructor that helps them learn to act and memorize their lines.The interviews reveal that although the individuals within the program are minimum security that they feel a sense of accomplishment and wish continue their education. One in particular graduated from college and was paroled in 2006. (Rogerson,2005) What we have to realize though for these individuals to graduate they first had to overcome their gang ties, rules, and culture. Also, survive any hits if their exit causes bad blood. They will still bare the gang tattoos and scars mental and physical. A backward step in prison system programs is the re-institution of chain gangs. Alabama re-instituted chain gangs in 1990.There are not as bad as the ones that were shut down and out lawed in many states, but there is still the humiliation of walking around in public with chains binding your feet. The males are less cumbersome since their feet are chained together with about 2 feet of slack, but females in Arizona are literary chained together with about 5 to 6 in a group. Arizona re-institutionalized chain gangs in 1996 in Estrella Correctional Facility near Phoenix. The Alabama chain gangs are forced to work in fields and clean-up crews. While working they are surrounded by guards and dogs watching for any sign of escape.Many of the inmates feel that the chains are not necessary that no one can escape between the dogs and guards. The cruelest of the punishments given out within the chain gang system was the hitching post. If an inmate refused to work they would be hand cuffed to a metal pole in the middle of the front lawn of the prison for 24 hours. This practice was considered to be a violation of the inmates civil rights and terminated in 1997. Because of the lack of results from this program Alabama quietly discontinued use of chain gangs in 1999. However in 2004, Maricopa County started a chain gang for juvenile offenders.Arizona was the first female chain gang and is still in use and has not had much as far as results either. They clean the streets of Phoenix and trim trees. They very in offenses but the most dominate seems to be drug abuse or trafficking. Of the 6 people the documentary interviewed 3 returned to prison within a few months. (Irving,1999) Another form of punishment within the prison systems besides chain gangs and probably the most common is solitary confinement. This practice is being challenged as inhumane because of the possible psychological damage it can create within the inmates.Humans are social creatures and being locked up in a small cell with on human contact for possibly years is destructive to their psyche. A study done with mice shows that mice, who are locked up with no contact with other mice for just 2 weeks, show considerably different behavior. They will avoid open areas and become paranoid around other mice. (Yost,2010) Most inmates released from solitary confinement will return for bad behavior and almost immediately lash out at the guards or other inmates. They believe that solitary confinement decreases the inmateâ€™s ability to control themselves. Yost,2010) Drug addiction, emotional damage, low education, and poor employment skills define the inmates and these disabilities endanger the community upon release, because they retreat to what will support them instead of that minimum wage job. That minimum wage job like flipping burgers at McDonalds is the only type of job an ex-con can get most of the time. They are going to look down at that job just as much a law-abiding citizens and the only difference is they wonâ€™t stoop to that level, they will go back to the gang to support themselves and their family.They are also behind on the technology in some cases. Inmates that have been locked up for more than 5 years wonâ€™t know how to run the newer computers and the idea of cell phone always in their pocket is completely foreign to them. (Fleisher,2001,#1,2)(Fleisher,2001,#2,70) Fleisher and his colleagues have ideas of integrating the x-cons into the community upon release. He notes that the men who are sent to prison are individuals who were never fully integrated into our law-abiding society and upon release they simply go back to what they know, criminal behavior.He believes that some things could be done within the community. If the community didnâ€™t hold their gang affiliations against the individuals when they are not active members then maybe they would not return to the gang. Forcing the individual to cut his ties to the only family he has ever known or to the only identity he has ever had makes them very uncertain of their place and makes it difficult for them to form a new one from scratch. Also, the implement of in-town treatment centers for them would also increase their ability and willingness to attend their sessions.Most treatment centers are too far for them to get to and having to pay to ride a bus clear across town is something they wonâ€™t be willing to do, especially if they are working that minimum paying job. (Fleisher,2001,#2,66-71) â€œWe have little hard data on the demographics of todayâ€™s prison gangs and the nature and levels of prions gang-related disorder in American prisons. This lack of data is a serious impediment to making progress against a serious and growing problem. â€(Fleisher,2001,#1,8) There has been a increase in both repeat offending, parole violators, sentence length, and lifers since the emergence of prison gangs.Most of the increases are above 30% during the 90s and have only averaged out instead of decreasing since. As of 1998 California and Texas had the largest prions populations even above the Federal Bureau of Prisons. Oklahoma was just behind Louisiana and Texas for highest incarceration rates per 100,000 state residents. (Fleisher,2001,#2,67) There is a connection between gangs and violence. A study conducted by John Worrall and Robert Morris found that individuals who are members of a gang have more reports of misconduct, violence toward inmates, and violence towards guards. Worrall,430) To understand a gang or just a gang member, one would have to live where they live and grow up in the types of neighborhoods they grew up in. They join gangs for reasons and those reasons are logical to them even though they are not to us. Joining a gang for them is probably much like joining the cheer squad, football team, or academic team would be to us. It is just what you do to be involved with a group that understands you and makes you feel wanted. Most of these kids probably just want the attention, which is why gangs are now using them to traffic their drugs.They donâ€™t receive the harder sentences as an adult would and are less suspect. (Morningstar,8) For the adults that are released from prison, there needs to be more than chain gang experience on their resume. They need the vocational and college classes to make it as well as a strong community support system that is not going to judge them. (Krienert,57) How do we get to the point that society doesnâ€™t judge an ex-con for his past crimes? I donâ€™t believe as a society we will ever make that change.A business owner will not take a chance on a gang or even a former gang member for fear that he / she will use that position to take advantage of the business and all its assets. As far as the rest of society is concerned about ex-cons in general is that it doesnâ€™t matter why you went to prison, you will never be trusted being a member of the community or the work force again. That being true for the thousands of ex-cons that canâ€™t get a job, or find livable housing, itâ€™s a wonder why they go back to doing the only thing they are good at.Gang membership and repeat offenders go hand in hand when you put those two elements together, and force those people to live in the life of a career criminal. Bibliography Articles * Barnet, Arnold. 1987. Prison Populations: A Projection Model. Operations Research. Vol. 35. No. 1. Pp. 18-34. http://www. jstor. org/stable/170907 * Carlson, Peter. 2001. Prison Interventions: Evolving Strategies to Control Security Threat Groups. Corrections Management Quarterly. Jan. 2001. Vol. 5. Issue 1. P. 10 * Davis, Mark and Flannery, Daniel. 2001. The Institutional Treatment of Gang Members.Corrections Management Quarterly Jan. 2001 Vol. 5. Issue 1. P. 32 * Drury, Alan and Delisi, Matt. 2008. Gang Kill: An Exploratory Empirical Assessment of Gang Membership, Homicide Offending, and Prison Misconduct. Crime & Delinquency 2011 57:130 http://cad. sagepub. com/content57/1/130 * Eckhart, Dan. 2001. Civil Actions Related to Prison Gangs: A Survey of Federal Cases. Corrections Management Quarterly. Jan. 2001. Vol. 5. Issue 5. P59. * Fleisher. 1989. Warehousing Violence. Newbury Park, CA. Sage. * Fleisher and Decker. 2001. * 1. An Overview of The challenge of Prison Gangs.Corrections Management Quarterly Jan. 2001. Vol. 5. Issue 1. P1. * 2. Going Home, Staying Home: Integrating Prison Gang Members into the Community. Corrections Management Quarterly Jan. 2001. Vol. 5. Issue 1. P65 * Klivans, G. S. 2012. Use of Texting Abbreviations in Gang Codes. American Jails. Mar/Apr 2012. Vol. 26. Issue 1. P 35-38. * Krienert, Jessie and Fleisher, Mark. 2001. Gang Membership as a Proxy for Social Deficiencies: A Study of Nebraska Inamtes. Corrections Management Quarterly Jan. 2001. Vol. 5. Issue 1. P. 47 * Marchese, Joseph. 2009.Managing Gangs in a Correctional Facility: What Wardens and Superintendents Need to Know. Corrections Today. Feb 2009. Vol. 71 Issue 1 p. 44-47 * Morningstar, Dennise. 1997. Prison Gangs, Norms, and Organizations. Journal of Economic Behavior & Organizaition 82 (2012) 96-109 * Phillips, Corretta. 2012. â€œIt Ainâ€™t Nothing Like America with the Bloods and Cripsâ€™. â€ Gang Narratives Inside Two English Prisons. Punishment & Society 2012 14:51. http://pun. sagepub. com/content/14/1/51 * Rhodes, Lorna. 2001. Toward an Anthropology of Prisons. Annual Review of Anthropology. Vol 30 (2001) pg. 5-83. Annual Reviews http://www. jstor. org/stable/3069209 * Sharbek, David. 2011. Special Needs Offenders. The Federal Judicial Center Bulletin. No. 12. October 1997. * Tachiki, Scott. 1995. Indeterminate Sentences in Supermax Prisons Based Upon Alleged Gang Affiliations: A Reexamination of Procedural Protection and a Proposal for Greater Procedural Requirements. California Law Review. Jul95 Vol. 83. Issue 4 pg. 1115-35 * Waterston, Alisse. 2005. The Story of My Story: An Anthropology of Violence, Dispossession, and Diaspora. Anthropological quarterly, Volume 78, Number 1, Winter 2005, pp. 43-61.George Washington University Institute for Ethnographic Research * Worrall, John and Morris, Robert. 2012. Prison Gang Integration and Inmate Violence. Journal of Criminal Justice 40 (2012) 425-432 Documentaries * Irving, Xackery. 1999. American Chain Gang. * Kukura, Andrew and Philips, Jenny. 2008. The Dhamma Brothers. * National Geographic. 2007. National Geographic: Aryan Brotherhood. National Geographic * Rogerson, Hank. 2005. Shakespeare Behind Bars. * Yost, Peter. 2010. Solitary Confinement. National Geographic. Websites Zimbardo, Philip G. 2012. The Stanford Prison Study. http://www. prisonexp. org/
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