Since the beginning of statism, rulers have sought to monopolize the provision of justice and criminal punishment for obvious reasons. Not only is it lucrative to do so, in the form of rulers taking for themselves in fines what should be given to victims in restitution, but it also allows for agents of the state to engage with impunity in activities which are criminalized for the commoner. Since time immemorial for those alive at the time of this writing, the nation-state has done so the world over. But when a government politician or enforcement agent is examined by government investigators or tried in a government court, this creates a conflict of interest. Government prosecutors and judges may be interested in promoting justice (or an illusion thereof), but they must also interested in maintaining the structure of state power, which may be endangered by indicting or convicting a politician or enforcement agent. And then there is the matter that the laws being used by said investigators, prosecutors, and judges are monopolized by the state, the common result of which is that a politician or enforcement agent is exonerated for what would land a commoner in prison.
While there is a long line of abuses and usurpations stretching back millennia, three well-publicized concrete examples of these problems have manifested themselves just in the United States in the month prior to the time of this writing. These are the non-indictment of Hillary Clinton for her mishandling of classified information, the overturning of Bob McDonnell’s conviction for political corruption, and the acquittal of Caesar Goodson in the Freddie Gray case. Let us consider each of these cases.
While Hillary Clinton was Secretary of State, she used private email servers and mobile devices to conduct government business. On July 5, 2016, an FBI investigation found that “from the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification. Separate from those, about 2,000 additional e-mails were ‘up-classified’ to make them Confidential; the information in those had not been classified at the time the e-mails were sent.” Three additional classified emails were found outside of the group of 30,000, one Secret and two Confidential. Evidence was found that Clinton or her colleagues were “extremely careless in their handling of very sensitive, highly classified information.” According to FBI director James Comey, “None of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails were housed on unclassified personal servers not even supported by full-time security staff, like those found at Departments and Agencies of the U.S. Government—or even with a commercial service like Gmail.” It was assessed that hostile actors could have gained access to Clinton’s email account and that they did gain access to email accounts belonging to people who corresponded with Clinton on classified matters.
Despite such a damning litany, Comey recommended that no charges be brought. Although the requirements for criminal charges under USC Title 18, Section 793, Subsection F were clearly met, Comey set up a straw man by claiming that there is not sufficient evidence of intent, even though intent is not part of the statute. This is for good reason because negligence in protecting classified information that can put innocent people in danger, and is therefore a malicious form of incompetence. Comey’s language concerning a “reasonable prosecutor” (whatever that means) was especially concerning, as it condemns as unreasonable anyone in the Department of Justice who might disagree with Comey’s recommendations. It is also noteworthy that Gen. David Petraeus and Maj. Jason Brezler were pushed out of the military in recent years for less.
The most likely explanations for this result are that Attorney General Loretta Lynch received her major career push from former President Bill Clinton, that Hillary could expose much deeper issues and many more violations in response to being indicted, that Comey lacks the fortitude to upset the electoral apple cart, and that Democrats care more about keeping power than accountability.
In 2014, former Virginia governor Bob McDonnell and his wife Maureen were convicted of accepting more than $175,000 in gifts, loans and other benefits from Star Scientific executive Jonnie R. Williams Sr. in exchange for the governor’s help in securing state testing of dietary product. Bob was sentenced to two years in prison for bribery and extortion, while Maureen was sentenced to one year and one day for corruption. He appealed his conviction, which was upheld by the Fourth U.S. Circuit Court of Appeals in July 2015. The Supreme Court reviewed the case and overturned the conviction on June 27, 2016.
At issue was whether Gov. McDonnell committed (or agreed to commit) an “official act” in exchange for the loans and gifts. An “official act” is defined as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit. The Court decided 8-0 that the prosecutor’s view of an “official act” was too broad, and that although McDonnell conduct was “tawdry,” it should not have resulted in a criminal conviction.
Jack Abramoff, a former congressional lobbyist who was imprisoned for fraud, corruption, and conspiracy, said of the ruling,
“I continue to be concerned by what seems to be a lack of understanding on the part of the justices that a little bit of money can breed corruption. When somebody petitioning a public servant for action provides any kind of extra resources — money or a gift or anything — that affects the process. People come to think those seeking favors and giving you things are your friends, your buddies. Human nature is such that your natural inclination is, ‘He has done something for me, what can I do for him?’ The minute that has crept into the public service discussion, that is a problem.”
Whereas the overarching theme of this article is conflict of interest, it is worth noting that the very Supreme Court justices who decided this case are themselves the recipients of lavish paid trips and gifts from private donors.
On April 12, 2015, Baltimore police arrested Freddie Gray for possessing what was alleged to be an illegal switchblade. While Gray had a prior criminal record, some of which was comprised of crimes against people and property, simple possession of a switchblade knife would not be criminal in a free society unless one were on private property whose owner disallows such armaments. While being transported in a police van driven by Officer Caesar Goodson, Gray was rendered comatose and was taken to a trauma center where he died on April 19. His death was caused by injuries to his spinal cord. It was found upon investigation that Gray was not secured properly in the van; he was handcuffed and foot shackled, but not buckled to his seat.
Goodson opted for a bench trial rather than a trial by jury. On June 23, 2016, Circuit Judge Barry Williams acquitted Goodson of all charges, including second-degree depraved heart murder, second-degree assault, involuntary manslaughter, manslaughter by vehicles (criminal and gross negligence), reckless endangerment, and misconduct in office. These charges could have resulted in up to a 30-year prison sentence. Williams claimed that the prosecution lacked the evidence to prove its case. Williams acquitted another officer involved in the case in May 2016.
The Common Problem
The thread which ties together these seemingly disparate cases is that all of them involve certain or nearly certain misdeeds by government personnel. These personnel are then subject to what is essentially an internal review, as they are investigated by another branch of the same organization. The investigation predictably finds that no wrongdoing worthy of prosecution or conviction occurred unless the conduct was so egregious that it is simply impossible to cover up, and the bar for this is set quite high.
Government will not hold government accountable because it is not in their interest. The only way to solve this conflict of interest is to eliminate it. If we are to have justice for the crimes of government personnel, we must take direct action to end the government monopoly on criminal justice. The remainder of this essay will consider what forms this might take and address likely objections.
Solving The Problem
The first response of most people when confronted with a proposal to end a government monopoly on a service is that one must be objecting to any organized provision of that service at all. In other words, they assume a false dilemma between state laws, police, courts, and prisons, or a vigilantist free-for-all. There is something positive to be said for vigilante justice, in that it can be better than no justice at all, and no justice at all is what the government system tends to provide for those who are victimized by the state. Vigilantism can also demonstrate that an oppressed people have had enough, and that those in power should listen to their grievances lest they be removed from power by an angry mob. But vigilantism has a tendency to descend into directionless violence that accomplishes nothing in the long run. As such, it is necessary to construct competing criminal justice systems which can replace the government monopoly and provide the due process that a lynch mob cannot.
We must, of course, start with the law itself, for no good cider may be made from poisoned apples. Government laws have extended into every facet of life and have become so complex that most people run afoul of the law on a regular basis without even realizing it. Without a government monopoly on laws, people would have the freedom to choose their own legal codes by either choosing from a number of law service providers or going into business as such a service provider. This system in which only the laws that people are willing to financially support through voluntary means can be enforced would have the effect of shrinking the laws which are mandatory for every person to the bare minimum; no murder, slavery, rape, kidnapping, assault, theft, vandalism, and so forth. Any activity which does not constitute aggression against a person or their property would not be criminal unless one had agreed not to engage in that activity as part of a valid contract, which is a contract that all parties enter into without fraud or coercion and that does not demand the impossible. This would swiftly eliminate police confrontations with citizens over such issues as possessing a state-disapproved kind of weapon or drug, or engaging in a state-disapproved business venture.
Next, we must consider the enforcers of the law. When the state has a monopoly on law enforcement, its agents can break the law with impunity to the extent that the statist system will not hold itself accountable. But in a system of competing private enforcers, the agents of one police company may be held in check by agents of all of the other police companies as well as a considerably more armed citizenry, as gun control laws would almost certainly be among the government laws which would fall by the wayside. Without the ability to enforce higher-order aspects of legal codes to which people have not consented and with the much greater probability that overreaching enforcers may be fired or martially defeated, non-government police lack the mechanisms that make government police so oppressive.
Third, we must consider private court systems. Without government laws and courts, every interaction between people of any complexity would need to involve a contract to specify how the people involved in the interaction agree to handle disputes which may arise between them. Individuals would likely hire insurance companies to co-sign their contracts for the purpose of ensuring that victims get restitution without having to wait for a contract breaker to provide it. Should one engage in criminal activity, one would be tried in a court specified by one’s contracts, with the appeals process also specified. Failure to abide by the ruling that one contracted to abide by would be economically crippling, as private defenders and dispute mediators would treat this as a risk worthy of raising a person’s rates significantly or even dropping them as a customer. Being without private defenders and dispute mediators would leave one in a difficult position, as one would have trouble buying, selling, entering into contracts, or even defending oneself.
Fourth, we must consider how a private legal system will deal with punishment and restitution. While the libertarian theoretical limits of punishment are quite broad, there is no reason why these limits must be approached in every case. Punishment in a libertarian society would generally take the form of forced restitution in cases where an aggressor refuses to make restitution without being forced, with the possibility of “eye for an eye” punishments where restitution is impossible.
In a private justice system, prisons would be tailored to the purpose of helping criminals provide restitution by keeping them safe and in decent living conditions while they do so. Several incentives are at work toward this end. The private prisons are competing with each other to house prisoners, so they each must try to offer the best service for the least cost. The prisoners are paying customers of the insurance companies which are affiliated with the prisons, so they can take their business and transfer their prison time elsewhere if they feel mistreated or endangered and can find a better option. The insurance companies wish to reduce violent crimes for which they must pay claims, and so have an incentive to keep prisoners from harming or being harmed by anyone. Getting criminals to go to prison could be accomplished by making their continued coverage contingent upon going there and making restitution, with the alternative being life as an outlaw in the traditional sense.
Note that unlike a statist system with mandatory sentencing requirements, a private justice system may allow the victim of a crime to negotiate an agreement with the criminal to reduce or even eliminate the criminal’s obligation to perform restitution. One could even specify in one’s will what should be done to one’s murderer if one is murdered.
Additionally, there is one punishment that one may undoubtedly inflict upon anyone for any reason without any need for judicial oversight: ostracism. To be denied association with one’s fellows as well as with one’s trading partners by said fellows and trading partners can certainly meet all of the above definitions of punishment. Psychologists have found that the pain of ostracism is quite similar to the pain of physical injury in terms of the effect it has on a person. The long-term effects that an episode of ostracism has make it an effective way to enforce beneficial social norms without violating the non-aggression principle. The lack of government anti-discrimination laws in this proposed system makes the full realization of ostracism possible.
Such a proposal typically meets three criticisms which were not addressed above. First, there is the “public goods” argument that this system may leave behind the poorest people who cannot afford to pay for it. Aside from the fact that “public goods” are a myth, the amount of productivity that could be unleashed by ending the government monopoly on laws should ensure that no one who does not wish to be poor would have to be. Even if this were not the case, the poor could still receive charity or form neighborhood watch groups while using the aforementioned newly legal heavy weapons, which would also be cheaper due to loosened restrictions on manufacture and ownership.
Second, there is the argument that competing private police forces will fight. The problem with this argument is that the incentives are all pointed in the opposite direction. Fighting will result in deaths for both private police forces, which makes it harder and more expensive for the surviving officers to serve their customers while hurting the public relations of the fighting forces. This creates an opportunity for other private police forces to step in and provide services more efficiently, thus sending the fighting forces into an economic death spiral. Note also that heavy area effect weapons cannot be used in such a fight without harming innocents and bringing legal claims and militant reprisals against the offending officers and companies. Failing all of this, such forces would still be less capable of destruction than nation-states currently are.
Finally, there is the contention that the state will not allow such a system to replace its monopoly. The state is quite profitable to those who run it and those who benefit from its influence, and they will not simply surrender this power. This would be the ultimate result of losing a monopoly on criminal law, as a private law system would treat government crimes committed under color of state law as though they were committed by private citizens. This is why liberty requires revolution, as the answer to the state disallowing a challenge to its power is to put it out of a position of being able to allow or disallow anything.
While government will not hold government accountable, the people living under it can, and it is they who must do it if they wish it done. The above market solution outlines an alternative to the statist criminal justice system, but it is up to the citizens afflicted by state crimes to build and operate such a system. The sooner this is done, the sooner all people can be held to the same basic standard of conduct and the crimes of the state can end.