Given how easy it is recognize in both paradigms that justice is about victims, why do people so often think justice is about punishing the criminal? Often, when protesters call for justice in the name of a victim, they call not for reparations or restitution, but for criminal prosecution of the perpetrator. Why does this attitude persist? Even libertarian theorists, most notably Murray Rothbard in The Ethics of Liberty, attempt to move from justice for victims, restitution, to criminal law, retribution.

For too long, the state has had a stranglehold on justice. Frederic Bastiat noted that when justice is perverted by the state, the people come to know nothing else but the state’s actions as “justice.” It is no surprise, then, that justice is thought to be some kind of persecution of those who do harm to others. The state uses justice as the banner under which it may take its looter’s share. By parading about as the “thin blue line” police become symbols of morality, even as they leave destroyed lives in their wake. Prisons are warehouses for the socially discomforting and pens for the downtrodden who would otherwise mar the cityscapes of the influential, not temples of justice, nor cages for social decay. The state and its agents have stolen justice from its citizens.

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Justice is the virtue of giving each his or her due. As a person, as a human, as a members of various relationships, each person deserves some particular kind of treatment. Justice is thus, in the words of St. Thomas Aquinas, “a habit whereby a man renders to each one his due by a constant and perpetual will.” So justice is about the person with whom one interacts, their dignity and standing as who and what they are. Other virtues, like prudence or fortitude, are about the agent who wishes to display them. To be insufficiently brave is to feel too much fear, or to feel fear of an improper object, but justice is about other people.

This makes sense in libertarian theory. The non-aggression principle is not framed in terms of the violator. It is wrong to aggress against another person’s justly held property primarily because it harms the victim, not primarily because the gains therefrom are not real accomplishments (though this is the case). The right of self-ownership does not follow from the fact that others have no ability to control one’s will but from the fact that one has the inalienable ability to make decisions for oneself. Even the law of equal authority is fundamentally about the wrong done to someone when power is expressed over them.

Leftists recognize that justice is about victims, also. When explaining the problems in rampant bossism, the callousness inculcated in bosses is morally secondary to the vulnerability endemic to the employees’ position. Underprivileged groups’ stigmatization is a wrong committed by the privileged against the marginalized. Privilege is not about the privilege holder, it is about the unfairness of the social dynamic it forces onto the underprivileged.

Given how easy it is recognize in both paradigms that justice is about victims, why do people so often think justice is about punishing the criminal? Often, when protesters call for justice in the name of a victim, they call not for reparations or restitution, but for criminal prosecution of the perpetrator. Why does this attitude persist? Even libertarian theorists, most notably Murray Rothbard in The Ethics of Liberty, attempt to move from justice for victims, restitution, to criminal law, retribution.

For too long, the state has had a stranglehold on justice. Frederic Bastiat noted that when justice is perverted by the state, the people come to know nothing else but the state’s actions as “justice.” It is no surprise, then, that justice is thought to be some kind of persecution of those who do harm to others. The state uses justice as the banner under which it may take its looter’s share. By parading about as the “thin blue line” police become symbols of morality, even as they leave destroyed lives in their wake. Prisons are warehouses for the socially discomforting and pens for the downtrodden who would otherwise mar the cityscapes of the influential, not temples of justice, nor cages for social decay. The state and its agents have stolen justice from its citizens.

State interest in retributive, perpetrator-focused justice is natural. It makes the rightness of a choice dependent on the one performing the act against another. Taking property from another is theft, unless the state is levying a tax. Shooting another person without cause is murder, unless an “officer of the law” is holding the gun. The quasi-divine sanction of the state removes moral responsibility from one who would rightly be a criminal. The victim is of no importance under a state’s so-called justice system. The perpetrator is everything, and the state has the power to decide who the perpetrator is, criminal or agent of the law. This is the identifying feature of the state and the source of its influence. It claims the final right in deciding the legitimacy of a use of force. It holds itself up as the final arbiter. It decides who matters.

To have true justice the state’s model of punishment must not be the operating paradigm. Those who have been harmed by another, no matter who the other was, must be made whole again, and it is the responsibility of the damaging party to ensure that this is so. This cannot be done by focusing on the perpetrator. Only the victim’s status matters in evaluating whether justice has been done, and victims deserve better than the farce the state has conducted for centuries in the name of its own victims. They deserve justice.

In April, the National Research Council released a report, The Growth of Incarceration in the United States: Exploring Causes and Consequences. The report explains many of the reasons incarceration rates have increased so dramatically in the United States, and analyzes the consequences of mass incarceration. 

The report largely ascribes the growth of America’s prison population to changes in sentencing policies. Until the 1970’s, the federal and state governments employed a system of “indeterminate sentencing,” in which “sentencing was to be individualized and judges had wide discretion” (72). But over the next few decades, America’s sentencing laws changed drastically. The report identifies three phases of this shift. During the first phase, from “1975 to the mid-1980s, the reform movement aimed primarily to make sentencing procedures fairer and sentencing outcomes more predictable and consistent. The problems to be solved were “racial and other unwarranted disparities,” and the mechanisms for solving it were various kinds of comprehensive sentencing and parole guidelines and statutory sentencing standards.” These changes were designed with liberal goals in mind, and often featured “population constraints” to control the growth of prison populations. The second phase, however, was far more punitive. “The second phase, from the mid-1980s through 1996, aimed primarily to make sentences for drug and violent crimes harsher and their imposition more certain. The principal mechanisms to those ends were mandatory minimum sentence, three strikes, truth-in-sentencing, and life without possibility of parole laws.” The authors characterize the third phase as a “period of drift” with relatively few increases in punitive policies (73).

The authors primarily blame the prison population’s growth on this second phase. They note that “truth-in-sentencing” laws, which require prisoners to serve a minimum percentage of their sentence before being released on parole, substantially increased prison populations. Citing research from the Urban Institute, the authors note that “When implemented as part of a comprehensive change to the sentencing system, “truth-in-sentencing laws were associated with large changes in prison populations”” (80). These laws primarily increase prison populations over the long term. The authors quote Spelman, who notes “Truth-in-sentencing laws have little immediate effect but a substantial long-run effect. This analysis makes sense: Truth-in-sentencing laws increase time served and reduce the number of offenders released in future years; the full effect would only be observed after prisoners sentenced under the old regime are replaced by those sentenced under the new law.”  Because these laws only show their full effects in the long term, many studies understate their impact on incarceration rates. “The Urban Institute, Vera, and RAND studies underestimate the effects of truth-in-sentencing laws on prison population growth because they cover periods ending, respectively, in 1996-1998 (for Ohio), 2002, and 1997. Mandatory minimum sentence, truth-in-sentencing, and three strikes laws requiring decades-long sentences inevitably have a “sleeper” effect,” the report notes (82).

In addition to expanding the prison population, these sentencing policies put a lot of discretion in the hands of prosecutors. The authors note that “Two centuries of experience has shown that mandatory punishments foster circumvention by prosecutors, juries, and judges and thereby produce inconsistencies among cases (Romilly, 1820; Reekie, 1930; Hay, 1975; Tonry, 2009b). Problems of circumvention and inconsistent application have long been documented and understood.” While mandatory minimums, truth-in-sentencing laws, and other mandatory punishments were designed to produce more standardized, consistent, and certain punishment, they can actually have the opposite impact. The authors provide specific examples of how this operates:

“Legislative prescription of a high mandatory sentence for certain offenders is likely to result in a reduction in charges at the prosecution stage, or if this is not done, by a refusal of the judge to convict at the adjudication stage. The issue…thus is not solely whether certain offenders should be dealt with severely, but also how the criminal justice system will accommodate to the legislative charge” (Remington, 1969, p. xvii). Newman (1966, p. 179) describes how Michigan judges dealt with a lengthy mandatory minimum sentence for drug sales: “Mandatory minimums are almost universally disliked by trial judges…. The clearest illustration of routine reductions is provided by reduction of sale of narcotics to possession or addiction…. Judges … actively participated in the charge reduction process to the extent of refusing to accept guilty pleas to sale and liberally assigning counsel to work out reduced charges.” Newman (1966, p. 182) tells of efforts to avoid 15-year mandatory maximum sentences: “In Michigan conviction of armed robbery or breaking and entering in the nighttime (fifteen-year maximum compared to five years for daytime breaking) is rare. The pattern of downgrading is such that it becomes virtually routine, and the bargaining session becomes a ritual. The real issue in such negotiations is not whether the charge will be reduced but how far, that is, to what lesser offense” (Newman, 1966, p. 182). Dawson (1969, p. 201) describes “very strong” judicial resistance to a 20-year mandatory minimum sentence for the sale of narcotics: “Charge reductions to possession or use are routine. Indeed, in some cases, judges have refused to accept guilty pleas to sale of narcotics, but have continued the case and appointed counsel with instructions to negotiate a charge reduction.” (78-79)

This has a variety of consequences. It erodes the deterrence that is supposed to come with harsher sentencing. But perhaps more importantly, “Mandatory punishments transfer dispositive discretion in the handling of cases from judges, who are expected to be nonpartisan and dispassionate, to prosecutors, who are comparatively more vulnerable to influence by political considerations and public emotion” (79). In addition to putting leniency in the hands of prosecutors, harsher sentences enable prosecutors to secure convictions without due process, as they can stack charges in order to coerce defendants into accepting plea bargains.

These harsher sentences also play a key role in producing racial disparities. The report summarizes the literature on racial bias at various points in the criminal justice process, including bias against black people who match particular stereotypes. While this racism is clearly present, the authors argue it is statistically small compared to the impact of sentencing policies. They argue that, “The reason for increased racial disparities in imprisonment relative to arrests is straightforward: severe sentencing laws enacted in the 1980s and 1990s greatly increased the lengths of prison sentences mandated for violent crimes and drug offenses for which blacks are disproportionately often arrested” (96).

If social science had played a leading role in policy discussions, these harsh sentencing laws would likely have been seen as undesirable when they were proposed. Unfortunately, “consideration of social science evidence has had little influence on legislative policy-making processes concerning sentencing and punishment in recent decades. The consequences of this disconnect have contributed substantially to contemporary patterns of imprisonment. Evidence on the deterrent effects of mandatory minimum sentence laws is just one such example. Two centuries of experience with laws mandating minimum sentences for particular crimes have shown that those laws have few if any effects as deterrents to crime and, as discussed above, foster patterns of circumvention and manipulation by prosecutors, judges, and juries” (90). It’s predictable that the state would ignore social science evidence. Voters are rationally ignorant, as the cost of studying relevant social science exceeds the benefits to voters of understanding issues. But worse still, as Byran Caplan documents in The Myth of the Rational Voter, voters are rationally irrational. That is, it is instrumentally rational for them to persist in irrational biases that are directly counter to social science, rather than simply being ignorant and agnostic.

The harsh sentences passed during the 1980s and 1990s have been extraordinarily destructive. They have shifted more power into the hands of prosecutors, undermined proportionality, exacerbated racial disparities in the criminal justice system, and played a key role in bringing us an America that incarcerates more people than any  other nation on earth.

Intuitively, it seems like we should. We’re instinctively outraged that cops can outright murder people and almost never get locked up for it. We’re understandably incensed that politicians from Richard Nixon to Ted Kennedy can commit heinous crimes and stay free, just because of their high social standing.

More fundamentally, even when cops and politicians are operating strictly within the limits of the law, they commit acts that would otherwise be seen as high crimes. As long as they follow all the right rituals of law, cops can threaten and kidnap completely peaceful people, and batter them if they resist. By waging war, politicians commit mass murder, and by expanding the prison state for campaign contributions, they literally sell people into slavery.

Ordinary people would certainly at least go to prison if caught doing any of those things. Anarchism is in part defined by a rejection of political authority, which means that we do not morally distinguish between the actions of a cop or politician and the actions of any other individual. So, one might think that the straightforward conclusion here is to one day set up libertarian tribunals to dish out punishments against agents of the state.

This view is understandable, but gravely mistaken.

Before law enters into the situation, we tend to hold to a pretty strict standard of self-defense. Which is to say: in any interpersonal conflict, we reject the initiation of force and only accept violence to the extent that it’s both proportional and genuinely necessary to protect the person being harmed or threatened. When someone goes beyond that minimally necessary amount of force, then they also become an aggressor, and their actions must also be condemned. After the fact, we demand that aggressors make restitution to their victims, but never counsel revenge.

There are very, very rare instances in which forced confinement may be justified, but this is only the case when someone is proven to actually be an ongoing threat to everyone in the community. Even then, this justification doesn’t apply for even the vast majority of violent criminals, and a justification for forced confinement does not justify forced confinement in any particular place. Nor does it justify the near total control that prisons have over prisoners. Hence why prisons are still inherently unjust.

A response might be offered that cops and politicians are indeed ongoing threats to the community at large. That much is true.

Yet the reason cops and politicians are ongoing threats to the community is not because of some psychological condition shared by all cops and politicians. Nor is it about any other quality shared by the particular individuals who occupy those positions of power. Rather, the individuals in those positions of power are ongoing threats to the community precisely because of their positions of power.

In other words, the minimal amount of force necessary to subdue them is just to get them fired or out of office, with the long-run goal of eliminating their jobs entirely. As for getting justice, what should be demanded is restitution – either in the form of hefty monetary compensation, or making amends through some other restorative process. Unlike punishment, that restitution can actually work toward giving back some of what’s been taken from their victims.

Which brings us to what may be the most important point: putting cops and politicians in prison does absolutely nothing to actually solve anything. When some on the left called for the trial and incarceration of George W. Bush (and others in his administration), prison abolitionist Dean Spade dissented, writing:

[T]he call to imprison Bush Administration officials is unsatisfying to me.  Imprisoning them would do nothing for those who have been killed in the wars, and making the call, to me, suggests that we believe the criminal punishment system is an apparatus for dealing with dangerous people and seeking justice, which is not true.  I would rather we put our energies into fighting for things we actually think can ameliorate the harm that has been done and prevent it from continuing.

Even if Bush had gone to prison, the United States government would still be bombing Iraq again in 2014. Even if Darren Wilson goes to prison, the police will continue to arrest black youth at wildly disproportionate rates. To the extent that their sentences would count as victories, they would only be symbolic victories. Those symbolic victories would lead many of us to believe everything was finally under control, numbing our passions for justice, and distracting us from the root causes of their aggression. Just like any other case of punishment.

The desire to fill prisons with those who are most truly dangerous in our society – namely, agents of the state – is a hard one to shake. Even still, it must be seen as a lingering form of retributivism felt by radicals brought up in a culture of criminal law, and like all forms of retributivism, it must be rejected. Especially given that its rationale is the same that empowers the very people it’s trying to fight against.

One harm caused by overcriminalization is obvious. As more innocuous behaviors are criminalized, we will see more people locked in cages for no good reason. Overcriminalization causes quite a few other problems as well. As Larkin writes:

If the penal code regulates too much conduct that is beyond the common law definitions of crimes or that is not inherently blameworthy, several problems arise. It becomes a formidable task for the average person to know what the law forbids, because the moral code offers no lodestar. It is difficult for the courts to curtail law enforcement excesses, because the police almost always will have probable cause to arrest someone for something. It is challenging for the criminal process to avoid being captured and corrupted by special interest groups, because every private party will vie for economic rents by making a criminal out of a rival. If new statutes are merely copies of existing laws with different labels, they are, at best, prescriptions for inefficiency (maybe even useless), or, at worst, fraudulent. If they outlaw the same conduct but multiply the penalties, the punishments become grossly disproportionate to the harm they seek to avoid and empower prosecutors to stack charges against a defendant to coerce a guilty plea. And, for those reasons, having too many criminal laws damages the respectability of the process that enforces them.

Ultimately, overcriminalization undermines the rule of law. It makes practically everyone vulnerable to searches and violence by the police. It enables prosecutors to coerce defendants into plea deals, thus undermining the rights to due process and trial by jury. It helps create harsh sentences completely at odds with proportionality. All of this means that individual liberty is incompatible with overcriminalization.

Paul Larkin attributes overcriminalization to “a latent design defect in the political process.” Perverse incentives of our political process guide political actors to pass more and more criminal laws each year. Larkin explains that passing bills to better fund or oversee existing law enforcement is politically costly. It involves direct budget costs in the case of funding, and in the case of oversight it requires legislatures to take time to acquire knowledge about the operation of law enforcement. Larkin contrasts this with the low costs to legislators of passing new criminal laws. In terms of financial costs, “making something a crime only costs whatever it takes to print the relevant pages in the Congressional Record and the United States Code.” And in terms of costs of acquiring information, “outlawing an activity does not require a legislator to learn anything  about  the  investigative  and  enforcement  agencies charged  with  implementing the  statute. In fact, the  agencies will draft the bill for him.” Supporting a new criminal law also makes you far fewer political enemies than making a funding decision, Larkin argues.

Deciding where public funds will go—guns  or  butter,  law  enforcement  or  education,  and  so forth—makes friends of some agencies and their supporters, in and out of government, but it also makes enemies out of the colleagues and citizens who do not receive funds for their own projects. By  contrast, making  something  a  crime makes enemies only from “the  criminal  element,” and those people do not count, largely because they cannot vote.

These are just a few of the incentives that entice legislators to support new criminal laws. While legislators discuss these laws in terms of the public interest, many criminal laws are better explained in terms of politicians’ self-interest.

It’s not just politicians that have incentives to support an ever expanding scope for criminal law. Prosecutors, regulators, and law enforcement agents all play a role. Larkin describes the relationship between prosecutors and legislators in this process as follows:

Prosecutors must actually use these new statutes for a legislator to receive credit for fighting crime on an ongoing basis. Prosecutors who make that choice thereby make an ally in the halls of the legislature—an ally who can help pass more laws that benefit prosecutors. The consequence, as Professor Stuntz termed it, is a symbiotic relationship between prosecutors and members of Congress. “Legislators gain when they write statutes in ways that benefit prosecutors. Prosecutors gain from statutes that more easily allow them to induce guilty pleas.” It is a “beautiful friendship.”

This symbiotic relationship between prosecutors and legislators means that criminal law not only expands on the books, but is concretely used to put people in prison.

The regulatory state plays a similar role, in what Larkin calls “the criminal-regulatory partnership.” Regulators benefit from this partnership by being able to call respected and feared law enforcement agents to enforce their regulations. Legislators also benefit, because “Adding criminal statutes to an otherwise entirely civil regulatory scheme allows Congress to cash in on the leverage that  a  criminal investigation  enjoys  with the public and the media.”

America has the largest prison population on earth. We have a voluminous criminal law, to the point where the Congressional Research Service told Congress they could not determine with certainty how many crimes are on the books. According to Larkin, “Today, there are approximately 3,300 federal criminal statutes.”
And unless we challenge the incentive structure that political actors act within, we are likely to see criminalization expand even more.

Occasionally I see a headline that makes me want to cheer. “Corporations Divest Nearly $60 Million From Private Prison Industry” was such a headline. As Katie Rose Quandt reported in Mother Jones:

Scopia Capital Management, DSM North America, and Amica Mutual Insurance pulled nearly $60 million in investments from CCA [Corrections Corporation of America] and GEO Group in the final quarter of 2013, marking full divestment for DSM and Amica and a 27 percent decrease in shares for Scopia. (Scopia has decreased its private prison stock by 59 percent since December 2012.) Their announcements mark the first round of success for civil rights nonprofit Color of Change, which has been pushing over 150 companies to divest from for-profit incarceration companies since last year. Color of Change is one of 16 organizations working towards these divestment goals as part of the National Prison Divestment Campaign.

This is a victory I’m delighted to see. Corporations like CCA and GEO Group are monstrous creatures of the state. Their profits come from taxpayer dollars, and their business is locking people in cages where they are abused and brutalized. Every dollar invested in a prison profiteering firm is a dollar invested in aggression, coercion, and destruction rather than production for individual desires and needs.

CCA and GEO Group have both been involved in many horrific instances of state criminality. CCA, for example, operates the Eloy Detention Center, an immigration detention center where migrants are held for deportation, often without charges or access to an attorney. Tanya Guzman Martinez, a transgender woman, was locked up with men in this facility. Guards and inmates alike repeatedly degraded her with misogynistic, homophobic, and transphobic slurs. One guard told inmates that in exchange for “three soup packets” they could “have” Guzman-Martinez, essentially an offer of forced prostitution. And one guard and CCA employee, Justin Manford, masturbated into a cup, and forced Tanya Guzman-Martinez to drink semen from the cup.

GEO Group operated the Walnut Grove Correctional Facility, a juvenile detention center where guards have raped, beaten, and pepper sprayed children and teens. Michael McIntosh Jr., one prisoner at the facility, “was beaten so badly…he sustained brain damage from which he’ll never recover.” GEO Group also operates the Northwest Detention Center, another due process deficient immigration detention center where migrants recently staged a hunger strike.

These corporations have an incentive to lobby politicians for ever more draconian criminal laws and immigration laws. They donate money to politicians, and until recently they wrote bills with the American Legislative Exchange Council (ALEC), all to gather more lucrative government contracts and fill their cages with more non-consenting residents. They are a concentrated and wealthy interest group, while the taxpayers they profit from are dispersed and their inmates are systematically disenfranchised. These perverse incentives create a continual demand for more prisoners. I have written previously about how the interests of prison employees create similar incentive problems for public prisons.

But many for-profit prisons have a vulnerability that public prisons lack. They trade stocks. This means that, while their profits directly come from taxpayers rather than consumers, many of their investors are companies that rely on consumers in a market. These companies can be pressured through boycotts to divest from prison profiteering firms. Consumers can give companies good reasons to drop prison stock, and move their money away from this institutionalized violence back towards the productive sector. That’s why the Prison Divestment Campaign can be effective at combating prison profiteers and balancing out some of the perverse incentives they help create.

The Prison Divestment Campaign can be thought of as a way to use our decisions in the marketplace to help starve the beast of the prison state. Taxes are taken from us by force to pay for this monstrous prison system. But while we have little choice in that, we can choose to boycott companies that invest in rapacious prison profiteers.

There are other ways to starve the prison state. A big one is building alternatives to the state’s monopoly on law. I call this entrepreneurial direct action. Many people consider the state’s monopoly on law and the reliance on criminal law and imprisonment as core parts of law are inevitable and necessary to protecting people from violence and plunder. But this ignores the historical record. In his book The Enterprise of Law, economist Bruce Benson documents the history of stateless systems of customary law, such as the lex mercatoria. A recent post at The Umlaut argues that Bitcoin’s cryptographic protocols can be used to build a new form of common law, a new stateless method of protecting people from theft and fraud. This kind of innovation could allow new law to developed consensually and voluntarily without the state, in a way that concretely meets people’s needs. This is the kind of innovation that a monopoly like the state has no incentive to produce.

People acting peacefully in the market have the potential to help starve the violent and abusive prison state that has claimed so many of our fellow human beings. Whether that means boycotting and pressuring companies that invest in prison profiteers or just building alternative legal systems outside the state, we should all take steps to move our resources away from institutionalized violence and towards peaceful, consensual forms of interaction.