Table
of Contents
1.
Introduction to Private Law
2.
Replacing the State with Firms That Are Fully Private
3.
Privatizing Prisons with Minimal or No State Intervention
4.
Should Private Prisons Profit, and Should Those Profits Be Taxed?
5.
Preventing the Profit Incentive from Becoming a Corrupting Influence
6.
Protecting the Public from Private Prisons' Bad Decisions
7.
Directly Limiting the Size of Prison Populations
8.
Privatization to the Third Sector
9.
Arresting and Detaining Suspects without the Use of Violence
10. Post-Script
Content
1. Introduction to Private Law
Libertarians believe that most institutions, and most services that the state provides, could and still would exist even if the state ceased to exist. Radical libertarians – including Agorists, and those who study “private law” - believe that it would be possible to replace all governmental services with private provision of similar services.
“Private
law” is distinct from “private arbitration”, and it is also
distinct from attorneys in “private practice”. They do have some
overlap, however. Attorneys in private practice are not state actors,
but may be required to operate according to the law. The same can be
said of private arbitrators, and perhaps to an even greater extent,
because private arbitrators make judgments that have the effect of
challenging the state's authority, while private attorneys do not.
In
a sense, the alternatives to government courts' and government
judges' judgments, which private arbitration (and also common-law
courts, to some extent) affords people, allow us to resolve our
disputes without getting the government's permission first. This is
just one example of the many ways in which private law could change
our society and government as we know it.
Supporters
of “private law”, including radical libertarians who study it,
believe that not only could we replace government judges with private
arbitrators (and/or with common-law courts, which have limited
recognition of the authority of so-called “higher” courts to
intervene with their decisions); we could also
replace
government prisons with private prisons and jails, and public police officers with private investigators.
This
would be done by making private prisons, private courts, and private
arbitrators “compete for customers on the open market” - in a
sort of “free market for security and legal services” - whereas
the state, previously, compelled
people to submit to government agencies for the purposes of acquiring
all of their needs pertaining to security, dispute resolution, and
ensuring that people and agencies abide by their agreements.
I
agree with those radical libertarians who believe that every single
thing we might want someone to do, could be done by non-state
“private” actors, and in a better way that involves less
violence. But I agree, only with some caveats and qualifiers, mainly
revolving around the issue of how to make sure the “private”
alternatives to the state are really as private as possible.
I
will begin by explaining these ideas more clearly, so that the reader
can fully understand, when I discuss what I intend to be the focus of
this article: the need to avoid the corrupting influence on private
prisons, which the profit incentive might cause, due to a perceived
need to keep the prisons and jails full of criminals.
Many
critics of “anarcho-capitalism” and private law, have pointed out
this potential problem; often arguing that private prisons - for the
sake of keeping profits up, and without regard for the inmates'
rights; that is, whether they are really “criminals” who deserve
to be in there at all – will tend to incarcerate more people than
is truly necessary and justifiable, compared to a world in which
people would only be jailed if they presented real, imminent,
credible threats to others.
2. Replacing the State with Firms That Are Fully Private
To
those radical libertarians who believe that even the legal and
security functions of the state can be replaced by private actors, I
say that I hope they agree – in addition to what they already
believe - that all legislation by politicians can and should be
replaced with contract law between individuals, and between the
voluntary associations which individuals form.
But
most importantly for the purposes of this essay, I hope that they
will also
agree that the so-called “private” agencies which will undertake
the burden of providing essential services which were previously
provided by government, must be “private” in the true sense –
and every
sense – of the word.
What
I mean by this is that, if and after the state is abolished - or
after we have the full ability to ignore and resist the state in
practice - then the firms that provide us with legal services and
security in the state's place, must be totally unaffiliated with the
state, if they can be said to be truly private.
At
the very most, these private firms (if they can be said to be truly
private) should operate at a significant distance from states; say,
for example, at the very most, private firms should only accept
standards recommended by states if they do so on completely voluntary
and terms.
And
further precaution is to be taken; this adoption of recommendations
of standards and practices by the state, should never be done on a
permanent basis. And the adoption of recommendations by any
provider of legal services or security which wields a monopoly or
oligopoly, should be done only voluntarily and temporarily. Such
oligopolies over legal services include not only federal and state
government, but also the B.A.R. Association, which, arguably,
effectively sets most or all legal standards in the United States.
Furthermore,
all
contracts
– whether they pertain to providing services or not - should
be subject to routine and frequent re-negotiation that all parties to
the contract are informed of and can expect. This is in order to
prevent pernicious terms from being imposed, such as life-long debt,
life-long work-debt, and usury.
3.
Privatizing Prisons with Minimal or No State Intervention
I
would like to caution radical libertarians in favor of private law,
that if we want prisons to become “private”, then we have to
think of a way for them to become private without endorsing the act
of directing the state to privatize those prisons for us (because
that would be endorsing positive state action, and using its monopoly
on violence for our own ends). As public infrastructure, prisons
should not be handed over to private actors.
Rather
than active privatization of prisons by the state, I believe that the
government should get out of the way and abolish prisons. If that
cannot be done, then I recommend whichever course of action would
result in privatization of prisons that would involve the minimal
amount of action by the state.
This
could be done a number of ways: 1) set all prisoners free, reasoning
that most are in prison for non-violent crimes, so bearing the
consequences of setting everyone free is worth the relief of freeing
many more wrongly convicted people; 2) set all non-violent prisoners
free, while transferring violent ones to more humane facilities, such
as psychiatric clinics; 3) handing custody of federal inmates over to
state prisons and county jails; or 4) transferring inmates into the
custody of not-for profit detention facilities.
I
will explain more about #4 shortly, but if none of #1-4 can be
accomplished, then I don't think it would be unreasonable for people
to form militias, and march down to their county jails and state
prisons and demand that the authorities either release prisoners into
the care of their families and communities, or else into the custody
of psychiatric facilities that employ people who can restrain them
with minimal force.
4.
Should Private Prisons Profit, and Should Those Profits Be Taxed?
In
order to be able to say that private solutions to the state are truly
private, a firm that takes on a former responsibility of a state must
be: 1) minimally state affiliated, or else not affiliated with any
state at all; 2) minimally taxed, or else untaxed by any state; 3)
minimally regulated, or regulated by itself, or regulated according
to independently crafted and voluntarily adopted standards and
practices; and
4)
not-for-profit.
This
is to say that a firm must not
have a direct, private
profit motive in mind, if it is providing what were formerly
considered public
services. This will seem counter-intuitive to some libertarians, but
if the firm has no
public or social responsibility,
then the private profit motive of the owners of the firm will
outweigh the need to consider the firm's negative effects on people
in society with whom they may not have any direct contract, but whom
their behavior negatively effects nonetheless.
However,
a not-for-profit firm would
be allowed to profit.
A firm that replaces the state should be allowed to derive profit, as
long as that profit is minimal and voluntary. This means that
“superprofit” (or “surplus profit”) is to be avoided; and
thus, wages, and the full product of workers' labor, may not be taken
from them without their consent. Any extra value which the worker
parts with, must be parted with only as a voluntary gift from the
worker to the consumer (and/or to any management which exists in the
firm, which – if it exists - should be inclusive, horizontal, and
egalitarian).
By
operating on a not-for-profit
basis,
rather than a non-profit basis, I believe that unnecessary disputes
can be avoided between those on the Left who endorse the Labor Theory
of Value and would likely want these agencies to avoid profit
altogether, and the right-libertarians who endorse a subjective
theory of value and believe that we should want
private
agencies replacing the state to profit from it.
Mutualist-anarchist
Kevin Carson has attempted to resolve this distinction by endorsing a
“subjective labor theory of value”, which holds that each worker
values his labor in subjective terms. Thus, allowing workers to part
with some of the value of their labor could help strengthen the
alliance between left- and right-libertarians, as long as there would
be sufficient protections in place to ensure that workers give up
this value on a completely voluntary and periodically re-negotiable
basis, and to ensure that workers have adequate ability to make sure
that the value they give up is going to the person or agency that
they wanted it to go to.
I
recommend that any and all agencies which replace the state, operate
on a not-for-profit basis, for additional reasons. Another is that
operating on a not-for-profit or non-profit basis, makes a
cooperative model possible. If the firm is based on a profit motive,
then the firm will not grow because its excess will be siphoned off
by owners and investors (private actors) rather than re-invested into
the firm.
By
re-investing what would otherwise become profits, into the firm, the
temptation to private investors to exploit the firm will decrease,
and workers and consumers will benefit instead of private profiteers.
Thus, the members of the firm who need to receive the most from the
firm, in order to be adequately functioning members of it – that
is, the workers – will be
the ones who derive the most benefit from the growth of the firm
(whether it's nominally a cooperative or
a non-profit or
a
not-for-profit).
To
right-libertarians, it may seem like a cop-out to say that operating
without a profit incentive will allow firms replacing the state to
avoid minimal taxation in the process. They may consider it a
cop-out, because firms incur less of a tax burden by organizing as
non-profits and cooperatives than by organizing as for-profit firms.
However,
I still prefer that firms replacing the state operate on non-profit
bases, because – unethical though the state's
taxation of profits may well be – profit should
be taxed by someone,
if it is confiscated unjustly or derived without consent. That
“someone else” who taxes this stolen profit back should most
certainly not be the state, nor an agent thereof; but whomever
performs this function should not derive profit from providing that
service (except what they are voluntarily given).
In
order to provide the most direct redress and recompense for the
person who was wronged, the agency that taxes profit should hand that
profit directly back to the workers from whom it was stolen (as well
as to any consumers whom are negatively affected by products that are
faulty and/or created using slave labor or coerced labor).
As
for whom would tax profits, it could be local communities, or a wide
variety of voluntary associations. Or the workers could simply decide
to take back parts of their company that they feel they've been
deprived of, or need control of in order to do their jobs (such as
taking their tools home with them from work when they leave for the
day).
Would
you fault workers for using their tools to smash machines that are
out-competing them, if they are literally
effectively putting those workers out on the street, making it harder
for them to feed themselves and their families? Would you fault
workers for “stealing” the owner's “intellectual property”
which consists in the components and designs of the product that
those workers organize their whole lives around producing, if the
ingredients were suspected to contain hazardous materials, poisons,
or even human flesh? I wouldn't fault workers for resorting to such
“extreme” measures, if the interests of the workers' families and
millions of consumers were at stake.
Right-libertarians
may well be correct that most firms aiming to replace the state (or
overtake its functions) will want to derive some form of profit, and
that private firms replacing the state should not be expected to
behave like public-sector agencies, and that that's
what
would make them truly private.
But
whether that is true or not, the private firms that replace the state
should at
least
have as
good or better
ethical, safety, and health standards than the public agencies they
are replacing. Otherwise, most of the public will not understand the
point of replacing public agencies; they will reason that if private
agencies are not
better than what they're replacing – in a way that's overwhelmingly
obvious and agreeable to all – then those private alternatives are
not worth interacting with.
This
public perception of private alternatives as a bad or unpopular thing
will go away as private alternatives become more prevalent and
popular, as well as show themselves to be capable of solving unique
and complex sets of social and economic problems which governments
have thus far failed to solve.
5. Preventing the Profit Incentive from Becoming a Corrupting Influence
To the point of the essay specifically, this much more still needs to be answered directly, on the topic of how to avoid profit incentive from becoming a corrupting influence on privatized criminal detention facilities: the issue of how to prevent private prisons and jails from operating on profit-based incentives, in a way that prison and jail cells are always filled with inmates.
Ayn
Rand said, “The only power any government has is the power to crack
down on criminals. Well, when there aren't enough criminals, one
makes them. One declares so many things to be a crime that it becomes
impossible for men to live without breaking laws.” This could
perhaps be taken as a warning about the creation of categories of
crime wherein the only victim is the “public” (whatever that
means), and the criminalization of behaviors which have no real
victims at all.
The
criminalization of too many behaviors is one of libertarians' most
important concerns about state overreach. But the state is not the
only agency capable of criminalizing too many behaviors in order to
justify its own continued existence; private agencies which replace
the state are capable of doing so as well. And that is why left-wing
libertarians are concerned about the prospect of “private agencies
replacing the state”, especially if “private” must necessarily
mean “for-profit”.
For
the state, criminalizing too many behaviors, and keeping too many
people in jail, has political advantage; it helps the state stay in
power, and justify its own continued existence, predicated on the
idea that since someone must jail people, then it must be (and can
only be) one agency, the state. This, unfortunately for the people,
renders the state “essential” only because
it has monopolized the authority to incarcerate people. The state is
not a monopoly because it is essential; the state is essential only
because it has made itself into a monopoly. That is, it is
practically the only agency authorized to incarcerate people
(although some “private” entities can detain people for a limited
time).
While
the state derives political power from jailing too many people (and
from keeping the prisons full of non-violent offenders it deems
“criminals”), that monopoly also
affords
to the state a secondary benefit; an economic
and financial advantage.
This takes the form of the ability to out-compete (and even
criminalize) all competitors seeking to provide security and other
legal services in market contexts. Thus, the state's legal monopoly,
is a financial one too.
That
is why the prospect of “private agencies” aiming to replace the
state, operating on a for-profit basis, should be such a concern.
After
all, what is to stop private prisons and jails from agreeing to
incarcerate people for any and all types of charges, without
considering whether the inmate had a good reason to break the law
(like that the law or contract he violated had cruel or unreasonably
pernicious terms)? Or without considering whether the inmate's rights
to due process were respected before arriving in their custody? Or
without care for the inmate's right to a bare minimum of adequate
health conditions and medical treatment, and freedom from unnecessary
violence that they weren't directly sentenced to, while in their
care?
To
reiterate the question and ask it directly: What safeguards can be
put in place to help ensure that people are not jailed for any and
all reasons, without any concern for their rights, safety, health,
and their responsibility to resist unjust laws that directly affect
them and make it harder for them to sustain themselves and their
families?
As
I explained above, reinvestment of profits into a firm, is what
allows it to grow. The firm cannot grow if the profits are
siphoned-off by outside investors and private owners.
Applying
these ideas to private prisons as firms, we see that a private prison
deriving profit will be exploited by outside investors who want the
firm to grow solely for the investors' own benefit; while reinvesting
those profits will lead to the “growth” of the prison for
its own sake.
This is to say that the inmates' health and safety conditions, and
access to education and opportunities to acquire skills, will
increase; while those who guard them will come to act more as
custodians than guards (keeping them safe from others, and others
safe from them).
Reinvesting
profits into the jail in this manner, will not only allow the jail to
“grow” in a social
sense;
it would also restore economic self-sufficiency to inmates, and allow
incarceration to become a solution
to the socio-economic problem of crime, instead of just a
“temporary”, self-perpetuating
bandage over the problem (which makes criminals into worse people by
surrounding them with a culture of violence, and, at that, racialized
gang violence).
I
think private prisons could work, as long as they were to organize
themselves as not-for-profit models, and operate according to either:
1) their own robust standards; 2) worker-imposed standards; 3)
consumer-imposed standards; 4) a mix of #2 and #3; or 5) voluntarily
adopted standards set independently by external non-state agencies.
Which of these would work best should remain an open topic of debate
among advocates of private law.
To
repeat, the public would need a high
level of assurance and trust in order to become totally comfortable with allowing the state to
survive and thrive with so-called “minimal” government
affiliation, regulation, and taxation.
That
is why I say that any and all firms aiming to replace the state - and
to provide services which the state will have formerly provided -
should operate on a non-profit, not-for-profit, or cooperative basis.
This is not only to “keep the taxman away” and to try to avoid
the
state; I recommend this so that the firms replacing the state have
both higher
standards of legal ethics and
higher
standards of business ethics
than the state agency (or legal institution) which they're replacing.
This
is in order to ensure that inmates are not exploited, nor worked half
to death for somebody else's profit, nor deprived of their right to
be free from hazardous conditions while in confinement, nor deprived
of their due process rights, either before
or
after arriving in the custody of the private detention facility.
Having
these higher standards of legal and business ethics than the state,
will allow “private prisons and jails” to manage their own growth
in an ethical, responsible, and financially sound manner, without
exploiting any inmate or employee in the process. Since they will not
exploit any inmate or employee, and will much less often resort to
unnecessarily cruel and forceful measures to restrain inmates, they
will scarcely resemble jails and prisons as we know them, and will
thus barely be recognizable as such.
The
fact that the firm would not produce any profit that isn't
immediately invested – wouldn't produce any excess which can be
bought and sold, or exploited – would not only render moot all
arguments claiming a need to tax that profit (and even all
justifications for taxing it); it will allow the firm to become
completely independent from the state and self-sustaining
(considering that the taxation relationship linking the state to the
firm would be severed).
Those
right-libertarians and “anarcho-capitalists” whom are open to
Agorism and private law, might very well happen to be correct that
private firms wouldn't seek to generate so much profit, if the state
weren't taxing them so much in the first place, that they have to
find a way to replace those lost funds (however, that should not
negate what I said about the fact that unjustly acquired profit
should
be “taxed” by somebody and find its way back to the person it was
stolen from).
Ending
the firm's tax relationship to the state, will rid the private prison
of its affiliation with the state. This will reduce or eliminate the
impetus of private prisons to incarcerate large numbers of people for
political
power
(which it learned from the state).
Eliminating
the impetus to incarcerate large numbers of people for economic
and financial power
(and for a competitive edge on the market), however, is a more
difficult problem. And unless we solve it, we could abolish the state
and replace it with private alternatives, only to realize that new
states could easily come into existence by imitating the very same
bad behaviors of private firms which they learned from the state in
the first place.
So
now, at last, we can take a crack at that problem directly.
6.
Protecting the Public from Private Prisons' Bad Decisions
I
have already discussed eliminating private prisons' tax relationships
to the state. This would be done in order to make a tax-free
situation for the firm justifiable, because the firm would need
nothing from the state, and the state would need nothing from the
firm.
But
another way – and perhaps the most important way – to help make
sure that “private alternatives to the state” are truly
private,
is to make sure that the public, and the surrounding community, are
never negatively affected by the firm without their knowledge and
consent, or, failing that, their compensation.
And
the way to make sure that the public never bears the costs of a
firm's bad decisions, is to have a strict policy of never
bailing them out.
To be safe, that should include never subsidizing them, never
granting them any legal monopoly status, never affording them any
taxpayer funding whatsoever, and never granting them special
privileges or immunities from financial and legal responsibility.
Ironically,
our supposedly “free” market system – and the interstate
Commerce Clause of the Constitution, as well as the federal
government's antitrust powers – are supposed
to prevent these monopolies, subsidies, bailouts, and privileges from
ever acquiring the force of law in the first place. In a truly free
market system, enterprises are “forced” to provide better quality
services to customers, and thrive based on their own performance,
without expecting handouts from taxpayers.
Enterprises
are “forced” to compete, but not by law; by the market, and by
the lack of promise of reward if they fail. As it relates to private
prisons, what this means is that they will have to compete
for
customers;
that is (in the simplest terms possible), they will have to compete
for subscription fees, paid by people who both: 1) want to jail their
attackers, and 2) agree to be jailed in the event that they attack
other people.
The
way that private prisons will compete for customers, is that they
will compete by offering better products, and cheaper prices, leaving
consumers to choose which detention facilities (as well as which
types of incarceration practices, and which actions people can be
jailed for) based on their own subjective judgment as to which have
the optimal combinations of security and inmate dignity that they are
looking for, for the price that they can afford. Simply put, if the
prison jails too many people, then the people who fund the prison
will notice, stop sending it money, and start funding a different
incarceration system that they find more humane.
What
will ensure the responsible management and social growth of private
prisons in a free market system, is the widespread inculcation in the
mind of the entrepreneur, the
principle that they are agreeing to undertaking risk. This principle
is, in some ways, already
inculcated
into the minds of entrepreneurs. But not all entrepreneurs understand
that part of agreeing to undertake risk, should include admitting
that you do not have the right to conscript the state – or
anybody, for
that matter - to bail you out in case you fail.
Logically,
that means that those who believe in a stateless market system,
should admit that they do not have the right to conscript the state
to turn their property claims into things that are registered in a
government database and legally protected with the physical force of
the officers of the law. The state does not have the authority to
fight for your supposed right to acquire unlimited future profits
based on the mere possibility
that you might increase the value of your property claims; not if the
state plans to rob me
in order to bail you
out. That's not how a free market operates; that's legalized theft.
What
I am referring to is the concept of “the right of increase” (the
“right” to expect values and prices to increase every year), as
well as political lobbying for business privileges, and the fact that
Limited Liability Corporation status confers legal and financial
freedoms from being responsible upon businesses (which gives them not
just an edge in competing honestly in an open and fair market, but
the power to use the law to shut their competitors out of business if
they feel that they “need to”).
This
is why any and all privatization of formerly state provided services,
should be done with great attention to ensuring that such “private”
firms are completely
non-state-affiliated
in every conceivable way. Or, at the very least, politically,
legally, financially, and economically. What constitutes voluntary
and acceptable cooperation with the state in a social
context, however, is beyond the scope of this essay.
But
what is certain is that “private prisons” accepting direction, or
handouts, from the state, would not be a fully private (nor fully
voluntary) arrangement. No monopoly can last on a market without
destroying it; without destroying its voluntary and competitive
natures that make it a market to begin with.
7. Directly Limiting the Size of Prison Populations
By
removing the state affiliation, the eligibility for taxpayer funded
bailouts, the tax relationship, the profit incentive, the impetus to
exact profit in order to offset the costs of taxes, and the
institutional and unnecessary violence, from the system of
incarceration that we have in our society today, we can make it a
more efficient system.
But
not for the purposes that Friedrich Engels warned us about; not so
that the state can become a more efficient tool of violence,
oppressing one class for the benefit of another. The incarceration
system should become more efficient, in the sense that its conscious
purpose must
be to
make itself unnecessary
(i.e.,
by solving a social problem – crime – instead of exacerbating it
in order to keep itself in business, and make itself essential and
needed and impossible to live without).
That
way, the incarceration system can become less cruel and more humane
to its inmates, and better capable of containing the threats posed by
those inmates who are actually
physically violent
and actually deserve to be in there to begin with.
If
completely ridding private prisons of all financial and political
associations with the state, and with the profit incentive, is not
enough
to allay public concerns about the safety of employing such
alternatives, then it may also be necessary for private prisons to
put caps and limits – that is, upward
limits, but not
minimums and quotas - on the number of people who can be held in
their operations (whether the limit would be on the basis of the
particular facility in question, or covering the total number of
inmates housed in all
facilities owned by the private prison company, or even limits on
both).
The
contract, or charter, which exists between the firm and those who
financially support it (and work for it), could be arranged so that
expanding beyond set inmate limits, could be deemed a violation of
the trust of workers, consumers, inmates, and the effected community
alike. Such an agreement could help ensure that a particular prison
doesn't grow in population, even if people come to see more behaviors
as threatening and harmful (and deserving incarceration).
If
more people need to be jailed, then more people could not be simply
crowded into an already existing facility; a new one would have to be
built, with similar or at least adequate safety and health standards,
and sufficient room for each new inmate, according to standards
established before
“overcrowding” became a (perhaps artificial) problem.
8.
Privatization to the Third Sector
When
it comes to “privatizing” firms and functions, the idea is
usually to make public resources into something private; transferring
it from the public sector to the private sector. This idea assumes,
however, that only these two sectors exist, and that there aren't any
others. But the existence of Public-Private Partnerships (PPPs),
quasi-nongovernmental organizations (QUANGOs), and “privatization
to the third sector”, all throw that private/public dichotomy into
question.
In
the colloquial sense, if a firm is described as “private”, we
assume that it is: 1) non-state-affiliated, or minimally
state-affiliated; and/or 2) operating on a for-profit basis. That is
what “private” typically means in our political and economic
lexicon. What I have explained above, is an attempt to ensure that
“private” alternatives to the state are “private” in both
of those senses of the word.
I
hope that libertarians – especially those on the right, who say
they support capitalism – will be cautious enough to avoid calling
a firm “private” if it still operates on a for-profit basis, and
especially
if it has any
remaining relationship with the state whatsoever.
If
freeing all prisoners is not an option or doesn't work – and if
“radical privatization” (that is, government getting out of the
way, instead of handing public resources over to private agencies
directly) proves to be, for some reason, untenable, when it comes to
the issue of providing non-state alternatives to jails and prisons –
then we should explore what has been called “privatization to the
third sector”.
In
“privatization to the third sector”, the government does
direct
public resources into the hands of a so-called “private” actor;
however,
that
actor is either a cooperative, a non-profit, or some other sort of
firm which is not directed towards the accumulation of private
profit. Which means that taxing it, and regulating it like other
firms, is difficult to justify, so in the light of the way it
operates, the firm deserves some considerations when it comes to the
rights and responsibilities which exist between the firm and the
people who work and pay to keep it running.
If
non-state-affiliated agencies could become the beneficiaries of this
“privatization to the third sector”, then they could function as
non-profit-oriented
firms that
solve problems which government was unable to solve. Left alone long
enough, to thrive on their own efforts (i.e.,
without
bailouts) - and to, through trial and error, craft their own
independent standards according to what their workers and consumers
and inmates want - they could
even eventually come to play the primary role in policing themselves
(especially considering that neither the firm nor the state would
either be able to, or even have an excuse to, depend on the other).
Thus,
the government of firms by the state, would be replaced by the
self-government
of firms; the government of firms by themselves. The effect would be
that the firms' dependence on the state for order and security would
be diminished; and that the state's reliance on the firms for tax
revenue (and its expectation of that revenue) would also be
addressed.
9.
Arresting and Detaining Suspects without the Use of Violence
A
discussion of how private prisons would work, is incomplete, if it
does not address why people need to be in prison or jail in the first
place. And so, I will end this essay by attempting to answer this
question: “How do you propose to ever keep anyone in any kind of
prison, without resorting to either violence, or threats of
violence?”
You
do it by: 1) establishing a high degree of trust, between society and
persons who may potentially be accused of crimes, that the arrestee's
rights to due process and safe treatment will not be violated; 2) by
getting the potential arrestee to agree wholeheartedly to submit to
the potential consequences of attacking others and violating his
agreements, so that there is little to no risk that suspects will
refuse to turn themselves in; and
3) by allowing the potential arrestee to choose alternatives other
than submitting to arrest.
In
order for #3 to work, the criminal suspect would be free to choose
alternatives to submitting to arrest (that is, alternatives to
agreeing to go into custody quietly and without struggling or
resisting), but these alternatives would be designed to be less
preferable than
submitting to arrest, when considered in the larger context that
refusing to be arrested would mean giving up the protection afforded
by the state (as a person who has decided to be outside the law; that
is, an outlaw). When compared to the costs and losses which the
person would agree to suffer for refusing to submit to arrest –
that is, giving up the state's protection – most people would view
submitting to arrest the lesser
indignity. But nobody could ethically be legally estopped (prevented)
from choosing to live outside of both the protection and wrath of the
state for the rest of his days.
[Note:
You can learn more about peaceful submission to government custody,
as well as common-law courts and the 7th
Amendment which recognizes our right to them, by watching Schaeffer
Cox's “The Solution to Reclaiming Liberty”, which can be viewed
at the following link: http://www.youtube.com/watch?v=sypZPeIAJ4o)
If
someone goes to prison or jail in an “anarcho-capitalist” society
(in in a society that embraces private law and the Non-Aggression
Principle; N.A.P.), then it would and only should be because the
violated someone else's right to be free from violence (and - by
logical extension - from force, coercion, threats, etc.).
This
means that the only reason they would be in jail, is if they have no
respect for other people's safety, and/or for other people's right to
be secure in their justly acquired possessions. Thus, incarcerating
them – especially if and when they are an active, credible,
imminent threat to others – is not
an N.A.P. violation in and of itself.
Incarcerating
dangerous people is not
an “acceptable use of force, for self-defense”. On the contrary;
self-defense
is not forceful,
which is why
it
is acceptable. And the use of force is
still not acceptable.
That doesn't mean we “can't use force to defend ourselves”; it
means that it is
not force
to defend ourselves.
But
the fact that it's OK to use “force” (really, just the use of
physical power) to defend ourselves, does not
mean
that we have the right to lash out with full force against anyone who
commits the slightest aggression against ourselves and our property
claims. We have to be restrained, and refrain from using
disproportionate force, in order to keep the fight fair. It would
hardly be appropriate to murder someone instantly, for the mere
offense of coming onto your property accidentally, or even willfully
but without any intent to harm you whatsoever.
A
person who has violated someone else's right to be free from violence
(and coercion, and threats) is extremely likely to do it again. That
is why some criminals (that is, actual
criminals; people whose crimes have actual victims) do
deserve
to be incarcerated, and restrained, or else physically separated from
large numbers of people whom they might victimize.
That's
why, not only is it acceptable (and voluntary, and not an N.A.P.
violation) to jail violent and dangerous people; it is an act of
self-defense.
And that's
why it is also
an act of self-defense (and thus, it is not a use of force or
violence) to compel someone who has violated another's rights, to
provide compensation to the people they wronged.
This
is not to say, however, that inmates should (or could ethically) be
compelled to work for the profit of others, nor work themselves half
to death. But inmates should, at the very least, work or labor in
some manner that offsets the costs of keeping them in there (paying
for their housing expenses, food, medicine, etc.).
In
my opinion, the idea that the public should foot the bill for the
inmate's expenses – the same taxpaying public that includes his
surviving victims – is ridiculous; but so is the idea that the
inmate's prison labor should benefit anyone except his victims and
their surviving family and friends.
[Note:
You can read more about my views on how much inmates should work (and
for whom, and why) – as well as some of my views on forced labor – by reading my article “The Gulags Were Less Harsh Than American
Prisons Are”, which can be found at the following link:
http://aquarianagrarian.blogspot.com/2018/12/the-gulags-were-less-harsh-than.html
10. Post-Script
To those who wish to learn more about how private arbitration and courts and dispute resolution, private security, and private contract enforcement, might work if the state were abolished: You can learn more about these topics by reading the works of Samuel E. Konkin, David D. Friedman, Roderick T. Long, and Robert P. Murphy; especially Friedman's essay “Private Creation and Enforcement of Law: A Historical Case”, and Murphy's book Chaos Theory: Two Essays on Market Anarchy.
Please check out the following links if you would like to learn more about topics alluded to in this essay, but not directly addressed, such as "lockup quotas" / "contractual occupancy quotas" for private prisons, and personal liability insurance for police officers:
http://www.npr.org/2016/06/27/483420607/to-stop-police-lawsuits-reformers-want-officers-to-get-insurance
http://www.aublr.org/2017/11/private-prison-contracts-minimum-occupancy-clauses/
http://www.prisonlegalnews.org/news/2015/jul/31/report-finds-two-thirds-private-prison-contracts-include-lockup-quotas/
http://nicic.gov/criminal-how-lockup-quotas-and-low-crime-taxes-guarantee-profits-private-prison-corporations
Originally
Written on May 2nd,
2019
Edited
and Expanded on May 2nd
and 3rd,
2019
Originally
Published on May 3rd,
2019
Links Added on May 9th, 2019
Links Added on May 9th, 2019
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