‘Nudging’ the mob: Reflections on HBO, Dutch weed and Japanese gangsters

In the third season of HBO’s critically acclaimed series The Wire, the showrunners created waves with a story arc wherein fictional West-Baltimore police major Howard Calvin, pressured to reduce homicides in his district, resolves to create several enforcement-free zones nicknamed ‘Hamsterdam’. Calvin’s aim is to concentrate the city’s drugs trade in one place while removing the internecine violence accompanying it.

The question raised by the Wire is, is it actually possible to organise crime on societal terms: to ‘nudge’ it in a certain direction?

The visible hand of the state

We rarely if ever talk about the efforts or unforeseen circumstances which pull illegal activities closer to the norms and conventions of polite society: to organise crime on terms dictated by the latter or in a way that reduces its harm, without simply eliminating it. This is in spite of the fact that organised crime is an inherently social phenomenon which is impossible without the interaction of multiple co-offenders. Organised crime reacts to changes in the world around it, and to its inhabitants’ behaviour.

However, we do tend to speak about the legal changes that push elements of society closer to organised crime: be it Prohibition or migrant smuggling in the Mediterranean today, organised criminal groups are discussed in the context of markets for illegal goods and services.

Hamsterdam’s namesake, Amsterdam, is presented in The Wire as being located in ‘one of those countries where drugs are legal’. This is the perception many tourists arrive there with, and likely depart with. However, as a former officer of the Royal Dutch Police told me, this is not exactly the case.

Across the Netherlands, the purchase of marijuana in specially licensed coffee shops is legal, and the premises may hold up to 500g, but the initial purchase of the stock is illegal. To reiterate: coffee shops can sell and store marijuana, but their wholesale purchase of it is a criminal offence.

A bizarre dynamic thereby exists whereby (with exceptions) the plant is illegal from pot to processing, but is fully legal by the final point of purchase. Coffee shop owners buy illegally but sell legally. Nonetheless, this seemingly counterintuitive tolerance policy (Geedoogbeleid) has a rationality of its own.

Closing the gateway

By legalising a conduit for marijuana to flow from illegal producers to legal consumers, Dutch policymakers have broken the chain that in many countries ties the former parties together. Marijuana, the so-called ‘gateway drug’ is no longer a gateway at all. The effects of this are fourfold.

Firstly, the illegal market is subject to quality controls because the coffee shops selling the end product are public-facing legal entities themselves. They can be sued, or, at minimum, receive poor reviews. They thus have a strong incentive to behave. Secondly, as law-abiding citizens, coffee shop entrepreneurs can rely upon the state to defend their property rights in a way professional criminals cannot. The bloodshed among dealers over who gets to sell cocaine, and where, has largely been regulated out of existence in the case of marijuana. Thirdly, returning to the analogy of the gateway, there is no longer the risk that users might be tempted by or become addicted to the harder drugs sold by their dealer. Finally, Geedoogbeleid anticipates and eliminates a practice during which breaking the law becomes normalised or habitual.

An obvious retort here is why not simply decriminalise marijuana? Since 2012 a number of US states have chosen this route, with four doing so against the backdrop of the recent Presidential election. The US House of Representatives has since passed a bill to the same effect. The answer is that socially conservative opposition at home and international treaties make it politically inexpedient. Rather, Dutch policymakers have been left with a phenomenon that they can affect with policy nudges, but can’t entirely eliminate.

An unexpected social contract

9000 kilometres away from the Netherlands, Japan presents another interesting case study whereby illegal markets are not regulated but the criminals are.

The Yakuza, despite often being described as a kind of Japanese mafia, are not actually illegal. Emerging after the Second World War, but tracing their origins back to gamblers and social bandits, Yakuza groups have long played a key role in Japanese politics, lending support to political parties whilst organising racketeering efforts ranging from extortion, to mediating tenancy disputes, to stock exchange speculation.

Nonetheless, the first legislation specifically targeting these Boryokudan (violent groups) only came into force in 1991, and subsequently formulated legislation has yet to outlaw them. Rather, the threat of being outlawed keeps the Yakuza in line. A surreal situation thus exists whereby groups can even keep office space to conduct board meetings and keep track of members. Meanwhile fan magazines feed a steady stream of yakuza-related news to the Japanese public.

The logic in tolerating these groups is clear. As one Yakuza member stated, “We have taken in the dregs of society, taught them discipline, and kept them in check”. By permitting the Yakuza to operate as institutions that are to some extent public-facing, the Japanese state has given them an incentive to conform to social norms and conventions.  Indeed, it is not uncommon to see a code of conduct pinned to the wall of a Yakuza clubhouse which prohibits theft and sexual assault.

Yakuza members appear to abide by such codes strictly, calling themselves Ninkyō Dantai or ‘chivalrous groups’. They made international headlines, for example, when they sent truckloads of aid to survivors of the 2011 Tōhoku earthquake. More recently, one group forbade members from committing fraud against the elderly amid the COVID-19 pandemic. In return for upholding their part of the deal, the Yakuza have been free to continue their rackets and maintain a legal presence.

Steadily however, the Yakuza are being regulated out of existence. Organised crime exclusion clauses in legal contracts, which permit parties to nullify agreements if their cosignatory has ties to the Yakuza, are becoming typical. Similarly in October 2019, ordinances went into force in Tokyo forbidding merchants from paying protection money. It is no coincidence that as of 2019 total membership of Yakuza groups was estimated at 28,200, down from 87,000 in 2004. Some voices in the Japanese commentariat have even expressed fears of a Japan with ‘unorganised’ crime, where criminals are not held to any code of conduct.  Even police officers have been known to view the Yakuza as a “necessary evil”. However statistics tell a different story, with recognised felonies, larcenies and violent offences falling consistently across Japan since 2006.

In conclusion, with the cases I present here I hope to highlight an innovative way to consider policymaking in regards to organised crime, which entails a pragmatic approach to regulation veering between decriminalisation and elimination. As such they form a useful complement to the existing literature on policy ‘nudges’, and raise interesting questions about how to best address organised crime.

 

Brian O’Connor is a second-year researcher in the EUI’s Department of Social and Political Sciences. His research focuses on religious festivals, legitimacy and social norms in the context of Southern Italy.