Friday, May 3, 2019

How to Fully Privatize Prisons without Risking Corruption by the Profit Incentive


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

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