Matt Peppe discusses the U.S. invasion of Panama.

Patrick Cockburn discusses the torture report.

Kevin Carson discusses the question that Michael Lind has yet to answer.

David Roediger discusses the defenders of police violence.

David Stockman discusses Wall Street crony capitalist plunder.

Sheldon Richman discusses getting away with torture.

David S. D’Amato discusses Pierre-Joseph Proudhon.

Gary Leupp discusses Paul Wolfowitz and the torture report.

Jacob Sullum discusses why torture is always wrong.

Randall Holcombe discusses normalizing relations with Cuba.

Pat Kennelly discusses the year in Afghanistan.

Lucy Steigerwald discusses the obscenity of respectable politics.

Laurence M. Vance discusses detainees in U.S. prisons.

Elizabeth Nolan Brown discusses sexual autonomy.

Henry A. Giroux discusses America’s addiction to torture.

Stephen Kinzer discusses quitting Afghanistan and Iraq.

Jo-Marie Burt discusses the lesson of Latin America for the U.S.

Leon Hadar discusses a new neocon book.

Justin Raimondo discusses why the U.S. government tortured.

Uri Avnery discusses whether the U.S. will decline to veto a U.N. resolution unfavorable to the Israeli government.

Rob Urie discusses torture and state power.

Jacob G. Hornberger discusses the normalization of relations with Cuba.

Philip Peters discusses the chance for a new policy towards Cuba.

Jacob G. Hornberger discusses the difference between libertarians and conservatives on torture.

Andrew Levine discusses a Hilary victory.

Zoltan Grossman discusses how the war at home and war abroad are similar.

Lawrence Davidson discusses the futility of torture.

Mark Taimanov defeats Anatoly Karpov

Mark Taimanov defeats Alexsander A Shashin.

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.

The key here is remembering that in order for a reform to actually be a reform, it needs to be a step forward, without any steps backward. Mapping out which way a reform is going, though, requires remembering that prisons are inherently unjust.

For example, measures that meaningfully work against something like prison rape should be supported, all other things being equal. However, all other things are sometimes not equal, as the introduction of women’s prisons has shown us. Since their beginning, the construction of women’s prisons has had the same effect that the construction of any prison does: higher and higher rates of incarceration . In this case, it has led to higher and higher rates of female incarceration specifically. This in turn leads to more and more women in danger of prison rape, especially from guards.

Outside of proposed reforms to prisons themselves, the prison abolitionist outlook also helps to structure our commitments on other social reforms. Hate crime laws provide a good example of this. Obviously, the libertarian prison abolitionist opposition to all punishment to begin with gives good moral reasons for opposing harsher punishments based on the motives of the offender. Beyond just that, though, keeping the structural problems related to prisons and criminal law in mind at all times helps us to see the actual effect of these laws. Namely, they do very little if anything to actually prevent hate crimes, while leading to plenty of real, tangible harms against the minorities they’re designed to protect.

Any expansion of hate crime laws (for example, to include gay or transgender victims) means an expansion of the prison state. Since the prison state is most likely to aim especially its aggression against the oppressed groups hate crime laws are ostensibly designed to protect – by locking up people of color and those who refuse to conform to heteronormative standards of gender or sexuality – this means strengthening the world’s biggest hate criminal. As prison abolitionist law professor Dean Spade tells us, hate crime laws are only about having the law say that oppressed people matter, not about treating them as if they actually do matter. With this in mind, he writes that “we must stop believing that what the law says about itself is true and that what the law says about us is what matters.”

As these and other examples show, insisting on an abolitionist rather than reformist stance is not some useless display of self-righteousness. It is a necessary consideration for making sure that every step taken is a step in the right direction. The incentive structures created by any system of domination and institutionalized aggression are such that it will co-opt any attempt at reform that is not aimed at abolition. We cannot afford to let the prison entrench itself any further. As the abolitionist of slavery William Lloyd Garrison said, “gradualism in theory is perpetuity in practice.”

This got me thinking about the relationship between different interest groups in shaping criminal justice policies. I had previously thought of prison guards unions, police unions, and private prison companies as basically the same. They are interest groups that benefit from incarceration and the criminal justice system’s coercive power, and accordingly they will engage in rent seeking to increase incarceration and related coercive powers. But while this is true, I don’t think it tells the whole story. There’s a lot of interesting stuff to be explored here.

For example, sometimes we see direct confrontation between these interest groups. In 1997, the California prison guards union strongly opposed the Corrections Corporation of America’s plans to open a 2,000 bed for-profit prison in California. As the San Francisco Chronicle reported at the time:

The plan drew criticism from the politically connected California Correctional Peace Officers Association, the union that represents prison guards.

“This guy’s full of bull,” declared Don Novey, president of the union. “Public safety should not be for profit. It’s just kind of stupid.”

Novey insisted that his opposition is not based on the prospect of losing union membership to a private firm. “When you start privatizing public safety, it’s a big mistake,” he said.

One of the most powerful prison guard unions in the country directly faced off against the largest operator of for-profit prisons in the country. If only these interest groups could spend more of their resources like this, fighting over who will control the spoils of mass incarceration rather than demanding the system’s expansion.

One intriguing and somewhat counter-intuitive possibility is that competition between guards unions and private firms may result in less advocacy overall for increased incarceration. In 2008, Alexander Volokh published an article in the Stanford Law Review that contended “privatization may well reduce the industry’s political power: Because advocacy is a “public good” for the industry, as the number of independent actors increases, the dominant actor’s advocacy can decrease (since it no longer captures the full benefit of its advocacy) and the other actors may free ride off the dominant actor’s contribution.” Volokh presents an interesting economic argument for why competition between guards unions and for-profit contractors might create a collective action problem that decreases the total amount of advocacy for increased imprisonment.

It seems plausible to me, however, that specialization may result in increased advocacy in particular areas, such as immigration policy. While influencing federal immigration laws is not likely to be worthwhile for guards unions that work mostly with state prison guards, it is worthwhile for firms like GEO Group and the Corrections Corporation of America, both of which receive lucrative contracts to operate immigration detention centers. And because ICE is still directly involved with the detention centers whether they are “privately” operated or not, it seems unlikely that ICE would compete with CCA and GEO Group the way the California Correctional Peace Officers Association does.

Both guards’ unions and prison profiteers face perverse incentives, but in different ways. Prison profiteering firms are often seen cutting corners in order to cut costs. For example, Corizon is paid to provide healthcare to prisoners, and avoids providing care whenever they can cut costs by doing so. This desire to cut costs is not seen from public employee unions. But the public employee unions face different perverse incentives, largely related to protecting their members from accountability. For example, in Maryland the guards’ union successfully lobbied for “the passage of the Correctional Officers Bill of Rights, which made it much harder to discipline bad correctional officers — thus reducing C.O.s’ accountability and facilitating brutality and corruption scandals,” as Alexander Volokh explained at the Washington Post.

Exploring the relationships among interest groups that influence criminal law gets more interesting and more complicated as we introduce more players. Civil liberties groups like the ACLU are generally opposed to the guards unions, the prison profiteers, and the rest of the law enforcement lobby. However, they occasionally support policies that increase incarceration, such as hate crimes laws. The way pressure from the law enforcement lobby and the civil liberties lobby interact to shape the criminal justice system has been explored in some interesting ways by Bruce Benson in The Enterprise of Law. Crime victims advocacy groups also often push for new criminal laws and act to shape the system in important ways.

These relationships among interest groups are fascinating to me, and I think they can tell us a lot about the prison system. I hope to explore these issues further in future posts.

After initial reports that Brown had been shot in the back, early autopsies showed that the bullets actually entered through the front (one shot which grazed the hand may have come from the rear). After claims that Darren Wilson, the officer who shot Brown, had a fractured eye-socket, it was discovered that he just had a swollen face.

Yet no matter what information comes out, most people have stuck firmly to whatever narrative they accepted from the beginning. Discussions about the facts of the case have also been very loud and emotionally charged.

This is because conversations about what happened between Darren Wilson and Michael Brown are not really about what happened between Darren Wilson and Michael Brown. The case is actually serving as a symbol for two other questions, more fundamental and much broader in scope.

The first of which is: “Are the police out of control?”

The way people are talking about this case seems to imply that if Wilson’s use of force was not in necessary self-defense, the police are out of control — and if it was, everything’s fine. No matter how the facts of this particular case turn out, though, the answer to this question is yes.

Even if Darren Wilson turns out to be a near-perfect moral exemplar, the police are out of control. Some estimates say that police kill roughly 400 Americans a year, but the real number is likely much, much higher due to issues with the way that statistic is calculated.

Furthermore, while there is unfortunately no footage of what actually happened that night between Wilson and Brown, Ferguson has since then given us plenty of evidence of lawlessness from the police. Police have used tear gas, rolled through in military vehicles, raided churches, screamed “I’ll f—ing kill you” at crowds, attacked reporters and just generally wreaked chaos on the Missouri town.

The second question that many people are really asking when they ask what happened to Michael Brown is, “is the criminal justice system of the United States still especially skewed against people of color?”

Here, too, we already know the answer is yes. Maybe Darren Wilson is literally incapable of seeing race. Maybe he is the least racist white person in all of Missouri. Even if that ‘s true, it is also true beyond a reasonable doubt that people of color, especially young black men, live under constant attack from the police.

As has been widely reported, blacks in Ferguson are stopped by police at an alarmingly higher rate than whites and are also subject to a disproportionate number of arrests. Ferguson is not unique here. Institutional racism is unfortunately just another part of the American experience.

Despite whites being more likely to use illegal drugs, blacks are four times more likely to be arrested for marijuana possession. Racial disparities in the prosecution of gun crimes are even larger. It’s not for no reason that black families have somber talks with their sons about how to deal with the police.

Because these figures are just numbers to most people, they often fail to inspire change. This leads those living their reality to rally behind a symbol like the fallen flesh and blood of Michael Brown.

Since so much has happened to so many people that has never gotten the news coverage this case has, Brown serves as a stand-in for what’s happened to them or those that they know. They don’t see Darren Wilson, they see the cop who murdered their brothers, framed their cousins or shoved guns in their faces at an early age. They don’t see the Ferguson Police Department, they see the prisons that overflow with people who look like them for “crimes” that hurt no one.

Given Ferguson PD’s failure to be forthcoming with their side of the story, the actions they’ve taken in response to protests and proven lies from nearby departments, it’s probably safer to be skeptical of their claims. Even in the unlikely event that they’re right, though, there’s still more than enough reason for the public to take a strong stance against the police. Not just in Ferguson, but everywhere.

It’s not just Michael Brown getting killed. It’s not just Ferguson where the police are an occupying army. It’s not just Darren Wilson and it’s not just a few bad apples. These problems are structural and have to be addressed at the root.

Matthews cites various empirical studies that suggest GPS tracking is very effective compared to other methods of crime control. Most of the studies compare GPS tracking and house arrest to parole, probation, community service, and other options besides imprisonment. However, one study examined tracking technology when used as a direct alternative to imprisonment:

The most intriguing evidence comes from Argentina, where Harvard’s Rafael Di Tella and Torcuato Di Tella University’s Ernesto Schargrodsky found that electronic monitoring cuts recidivism nearly in half relative to a prison sentence. That raises the possibility that electronic monitoring could be more than merely a supplement to prisons. It could replace many of them. The program evaluated used something a bit less technologically sophisticated than GPS tracking. Offenders wore an ankle bracelet which transmitted a signal to a receptor in their home. If the signal is interrupted, or the device appears to be manipulated, or the vital signs of the individual are not being transmitted from the bracelet, then the receptor calls it in.

Di Tella and Schargrodsky’s evidence is particularly compelling because the decision of whether to give Argentinian arrestees house arrest or prison was made randomly. In most countries, electronic monitoring is offered to defendants judged to be less dangerous, so you’d expect those sentenced to it to reoffend less than those sent to prison. “If you show someone released into monitoring has lower recidivism, all you show is that the judge was successful and identified the person who was less dangerous,” Di Tella notes.

But in Argentina, judges are randomly assigned to cases, and strict and lenient judges differ wildly in their inclination to use electronic monitoring. The result was that extremely high risk people were sometimes given electronic monitoring and extremely low risk people were sometimes thrown into jail — it was just random. The leniency of some judges meant that there were “people accused for the second time of murder [who] were still given electronic monitoring,” Di Tella says. Di Tella and Schargrodsky had stumbled upon a true, randomized experiment, and the result was being monitored instead of imprisoned caused people to reoffend less.

These results suggest that GPS tracking and house arrest could be more effective than imprisonment at preventing criminals from reoffending.

However, while Matthews’ argument at first appears to be a prison abolitionist argument, it is in fact a reform proposal. In order to make sure people remain under house arrest, Matthews proposes “a guaranteed, immediate prison stay for those who violate its terms.” He also argues that for the most dangerous offenders, such as murderers and rapists, house arrest is still insufficiently secure to hold them. Matthews’ proposal would, however, entail locking dramatically fewer people in prison. As Matthews points out, “In 2011, only 2 percent were admitted for murder, 0.7 percent for negligent manslaughter, and 5.4 percent for rape or sexual assault. … The vast majority of the people getting locked up aren’t killers or rapists.”

If Matthews’ proposal were ever implemented, it would in some ways be a dramatic improvement over the American prison system. The very structure of prison makes inmates vulnerable to rape, murder, and other forms of violence in a way that seems unlikely with house arrest and ankle bracelets.

However, there are also substantial risks to expanding the use of house arrest, ankle bracelets, and GPS tracking. The ultimate risk is expanding the scope of criminalization and turning society into an open air prison. These technologies risk turning our homes into sites of surveillance, control, and punishment while making the world a constantly monitored panopticon.

Another problem is that political incentives would make a less punitive system like the one Matthews proposes unstable. As I’ve discussed previously, politicians have plenty of incentives to support ever more punitive policies. After any crisis, heinous crime, or moral panic passing new punitive statutes is politically advantageous for politicians. Politicians further gain from high profile enforcement of the laws they pass and prosecutors benefit from successfully prosecuting people, so a symbiotic relationship between politicians and prosecutors emerges. Prison guards gain concentrated benefits from incarcerating more people, while the costs of imprisonment are dispersed to taxpayers as a whole, and only concentrated upon those who are systematically disenfranchised. Moreover, the general public is rationally ignorant about politics, and polls and surveys indicate that the public overestimates the amount of crime in society, producing a bias in favor of more punitive policies.

So even if GPS tracking is a good replacement for prisons, political incentives mean that punitive prison policies would be reintroduced after GPS tracking was adopted as a supposed replacement. Ultimately, change needs to happen at the level of the institutions and incentives themselves. Change needs to happen at what economists like James Buchanan call the constitutional level, where the rules of the game are made. In my view, the necessary constitutional change is the abolition of the state. It’s good that pieces questioning the necessity of prisons are being published in mainstream liberal outlets like Vox, but a more radical challenge to the  political structure is necessary.

Brazil is a violent country. A sizable part of the population experiences many aggressions in its streets. However, violence in Brazil is present in prisons too. There, it can take very subtle forms, which very few people – except those who suffer from it – come to know about. Among these subtle forms of violence are the “vexatious searches.” On April 23, Rede Justiça Criminal launched a national campaign against vexatious searches in prisons.

The campaign’s website splash page warns us: “This campaign contains offensive language, and dramatizations are based on real accounts from the victims.” When we proceed, there is a new warning: “Close your eyes, put on a headset and feel the victims’ pain.” The stories are very moving. They speak of women and children who went to visit their incarcerated family members and had to strip and spread their genitalia open as well as squat three times before being allowed in the prison. “We can’t see inside. Open your vagina with your hands. There, that way I can see it properly,” a prison officer says in one of the accounts.

In a handwritten letter publicized by Rede Justiça Criminal, a woman denounces what happens in a São Paulo penitentiary:

We suffered constant humiliation and embarrassment; we had to pry our intimate parts open with our hands, lift our legs and rest them on the counter, put the finger in, crawl on all fours, and (…) if we are having our period, we cannot visit our relatives.

The institution defines vexatious searches as the “procedure to which people are submitted when they visit their family members in prison. This practice is known as vexatious search exactly because of its humiliating and abusive character. These people, children, adults, or elders, are required to take off their clothes, squat several times, and often have their genitals inspected (with no attention to hygiene whatsoever).”

Rede Justiça Criminal also notes that it is a harsh reality that approximately half a million people weekly in Brazil endure, while its effectiveness to prevent the entry of drugs or cell phones in the penal institutions is debatable: According to a survey, only .03% of the people searched in São Paulo penitentiaries are ever caught holding banned items. It affects disproportionately adult women, who make up 70% of the searched.

Researchers Raquel Lima and Amanda Oi also stress that the practice’s perceived legitimacy distorts the officer’s view of the situation:

And … those women who cry, try to cover their body with their hands, or demand their rights to be respected are treated as undisciplined and not as people reacting instinctively to an act of violence. Many end up being punished with loss of visiting privileges for at least 30 days, under the justification that they slow down work by the prison personnel.

We should not be surprised: Obedience to authority is an instrument of psychological desensitizing, as described by Milgram’s famous experiment. Without a culture of questioning power, there can be no respect to basic individual rights.

For that reason, the group calls for the approval of a new law which would forbid this practice (nowadays it’s left to each state to regulate it) and propose, as an alternative, the so-called “humanized search,” already employed in the state of Goiás.

A large public debate was needed about the subject in Goiás so that it would enact change. It was spurred by the publication by the Public Prosecution of a video in 2010 called “Vexatious Search – Visiting a Brazilian Prison.” According to prosecutor Harold Caetano da Silva, it was brought about by the “courage of a woman who allowed filming of her search under the old system and was willing to denounce, even if it meant exposing her own body, the abject institutional violence committed by the State of Goiás against the people, mainly women, of all ages, that experience the duress of having a relative, friend or partner convicted and incarcerated.”

As David Schmidtz and Jason Brennan pointed out, the existence of civil rights, and even the existence of a libertarian society, depends on a culture of freedom and individuality, where specific heroic acts are catalysts for change. Despite the human tendency to social conformity, the example of someone who rebels against an unjust rule makes it easier for other people to question it, creating a new opposing trend. The example of this woman in Goiás is firmly within this social dynamic, bringing about change that prevented many people from going through the same situation as her.

Prisoners’ families should not be penalized by vexatious searches. It is necessary to liberate Brazilians from yet another state violence. As libertarians, we cannot tolerate it if we ever want to live in a free society.

Translated from Portuguese into English by Erick Vasconcelos.

Gus writes:

Non-profits often pad the salaries of their top people, especially big ones. Padded salaries come from shifting resources away from other purposes, like that sheriff in Marion County. Just because something is a nonprofit does not mean those in charge are not greedy. Consider the Komen Foundation and others like it. There is nothing sacred about nonprofits. Some are great and some are corrupt. In addition, where will the non-profits get the money they need? Someone has to pay for them. We are more likely to contribute to causes that support positive goods than ones that incarcerate bad guys.

Gus makes a good point about non-profits here, but there would be competition between non-profit prisons to offer the most humane conditions. I’ve already stated that clients of defense associations would pay for prison expenses. As for people preferring to donate to positive goods rather than the improsinment of bad guys, I’d point out that the humane treatment of bad guys is a positive value. There is also the possibility of error in judging guilt and the positive value of helping innocent people get freed or have comfortable conditions while serving their sentences.

In public prisons in democratic countries if people are incarcerated they retain the rights of citizenship including being able to see an attorney. Harper Lee’s To Kill a Mockingbird tells the story of why that matters. In that case the accused ended up with court appointed attorneys. This is something that beggars the imagination happening in a libertarian anarchy. Ron Paul did not even help his most important fund raiser pay his medical bills, and libertarians as a whole raised only 10% of the total needed. His survivors were left with a huge debt. If libertarians cannot help their own people who have rendered them great services, why expect them to help the accused who often are guilty?

Defense associations could provide for competent attorneys in the absence of the ability to hire one. This would be paid for by th clients of said defense associations. As for the lack of charitable giving by libertarians, is that a consequence of libertarian ideology or a reflection of personal characteristics of existing libertarians unrelated to their ideology? I argue it’s the former. The libertarian, Jacob G. Hornberger points out that Americans gave 150 billion dollars to chairty in a year I’ve forgotten. If more of them became libertarian, I see no reason why they wouldn’t retain this charitable sensibility. Steven Horowitz has written about the importance of mutual and so have others like Kevin Carson. There is clearly libertarian support for charitable giving.

Some libertarians such as the one I quote above then shift the ground to ‘restitutive justice.’ I agree that when possible restitutive justice is a good thing and vastly superior to incarceration. We need much more of it. Nevertheless it needs to be enforced with the threat of less desirable punishment if the person does not provide restitution. Further some crimes have little chance for restitution, such as murder. If you claim, as some libertarians do, that they should pay “weregeld” or some other medieval notion, we need to remember that back then the fine for killing the equivalent of a Koch brother was vastly more than for killing a peasant. It would be the same in a libertarian society where ‘the market’ is the final evaluator of worth. Indeed, this happened in the Triangle Shirtwaist fire during a time in our history that libertarians generally praise as superior to our own for ‘freedom’.

House arrest is an alternative to prison for murderers. It has similiarties but isn’t exactly the same. In a left-libertarian market anarchy, there would also be a strong civil society alongside a freed market. The market would not of necessity be the final arbiter of worth.

Gradually this spread of kind of thinking far beyond libertarian circles has encouraged even supporters of public services to think about them in private terms in which citizens become consumers. But whereas the term :citizen” applies to everyone equally, the term “consumer” is the opposite. Everyone is a consumer, but not at all equal even as an ideal. The results are hideous when the logic of consumers and of privatization is applied outside its appropriate sphere.

I am not sure why a consumer is not equal, but a citizen is. There is often differential access to power in statist societies and all citizens are not equal. Is it because there is a difference in money between consumers? There is a difference in power between citizens even with formal equality before the law. Why can’t someone be a citizen and a consumer too?

For libertarians one public value is determining what constitutes property rights. Until they are determined the vaunted libertarian market cannot exist much past the point of barter. Libertarianism is parasitical on government in this respect. It depends on it for the market to work but then claims that government is what keeps the market from working even better.

This assumes that property rights can’t be defined by private defense associations which are community based and thus have equal input. They would only be private in the sense of being non-state or non-government.

Democracy is complicated and never perfect, but it is a vastly more rational way to address problems of public concern than libertarian boilerplate about ‘stateless’ societies existing beyond the level of a village.

Democracy and anarchy are not of necessity mutually exclsuive. As for stateless societies beyond the village level, there are examples like Medieval Iceland that were beyond said level.

In said piece; Gus says:

Privatization of prisons creates corporations with a vested interest in maintaining current crimes as illegal even when there is no just reason for doing so, because it guarantees keeping their cells filled and their profits high. They also have a vested interest in criminalizing additional behavior. They demonstrably use some of their profits to support friendly legislators and lobby for legislation they desire. And their political favors are returned.

We agree on this point. This would be less of a problem in a left-libertarian market anarchist society, because there would be no monopoly state or government to influence. The corporations would have to successfully bribe and get favors from a variety of defense associations. It would require more resources and effort. There would also be countervailing pressure from non-bought defense associations. If in fact said corporations would still exist without state or government favoritism. I doubt they would, because there would be no subsides, regulatory protectionism, tariff walls, and monopolistic state power backing them up.

At the same time since prison inmates are not their customers they have an incentive to spend the absolute minimum allowed on them, so as to keep the most for themselves. My old friend Scott B. observed he had “ learned why the Sheriff of Marion County, Indiana was the highest paid government official in the state. Sheriffs get to keep the difference between the fixed per prisoner allocation and the cost of running the jail.” He became opulent employing modern business management in government agencies.

The next step in this logic will be to force inmates to work at minimum wages to pay their way (so as to ‘help taxpayers’) and charge them for their incarceration. Thus market logic will re-establish slavery in the US. And libertarians will call it freedom and the magic of the market.

In a left-libertarian market anarchist society, prisoners would be able to choose what prison they want to go to. Prisons would compete by offering humane conditions. The clients of defense associations would be paying for prison upkeep, so there would be no forced labor by prisoners to pay their expenses. I can’t speak for other libertarians, but I wouldn’t refer to the slavery mentioned above as freedom.

Setting aside the escape clause of “principled libertarians,” which plays the same role as “real Christians” does for aggressive evangelicals, we end up with an anarchist argument that somehow things will be different without a ‘state.’

What pray tell is a ‘non-state operated’ prison? The writer writes as if such things exist. The closest analogue I can imagine as currently existing are either the private prisons I am discussing or kidnappers incarcerating their prey until ransom is paid. Such people are simply free lance anarcho capitalist entrepreneurs if they claim their victim is being held until restitution for alleged crimes against others. Like seizing Dick Cheney. Much as I think he should spend the rest of his life in jail, that is a very bad precedent as any sane person should recognize.

Principled libertarianism is designed to make sure that people actually representative of genuine libertarian ideology have their arguments addressed. A Nazi could otherwise claim to be libertarian and have libertarian ideas. As for non-state operated prisons, Gus is partially correct to note that “private” prison corporations represent them. I only say partially, because they receive taxpayer dollars and benefit from government or state legislation defining what a crime is. It does show that such things can partially exist, but it’s not the ideal model. The kidnappers example is faulty, because no anarcho-capitalist I know of would advocate that you could forcibly imprison someone without any trial and objective establishment of guilt. What is the difference between a defense association doing this and a government agent doing it? I’d also add that just because something hasn’t existed yet; that doesn’t mean it can’t exist. Democracy was once only an idea and yet is widespread today.

By definition a prison forcibly incarcerates a person against his or her will as punishment for a crime he or she allegedly committed. This means there had to be a system to apprehend a person against their will, take them to some process where their guilt or innocence could be determined, and if found guilty, incarcerated. Otherwise the existence of a ‘prison’ as a legitimate part of society makes no sense at all.

I agree with Gus on this one. I support competing defense associations with prison, judicial, and police services. They would constitute the enforcement arm of a left-libertarian market anarchist legal system.

• Over at the Washington Post’s Volokh Conspiracy blog, Ilya Somin has an excellent reply to the argument that undocumented immigrants have acted immorally by violating the law. As an anarchist I reject the idea that one has a moral obligation to obey the state’s laws. But Somin persuasively argues that even with a presumption in favor of obedience to laws, there are good reasons to believe that other factors make it moral to cross borders without legal permission.
• In other news related to the criminalization of migrants, protests continue across the nation to oppose the ongoing harms of mass deportations. April 5th marked a National Day of Action Against Deportations. Over at PanAm Post, Fergus Hodgson has a good article on the protests.
• Deportations continue to destroy lives and break up families in my home state of Utah. Ana Cañenguez, who I have mentioned previously at this blog, was just told by ICE that her application for humanitarian exemption was denied. This means she will be deported back to El Salvador and her family will be split apart by state coercion. As Ana told reporters,  “I don’t understand why this President can tear families apart.”  We must fight for a world where no presidents or other state actors have that horrible power. As Anthony Gregory puts it, “End deportations now. This is beyond cruel, and such horrors occur hundreds of times a day in the name of immigration control. Obama’s presidency has topped all others on deportations in absolute terms, at least in modern history.”
• Another horror inflicted by the prison state is rape by state actors like police and prison guards. These rapists act with virtual impunity thanks to the state’s institutional power, ideological euphemisms, and the state’s monopoly on law. One of these rapists, Kansas City police officer Jeffrey Holmes, was actually convicted of a crime on Friday. Holmes raped two women, both of whom he accused of prostitution. While prosecutors alleged that he used his position as an officer to coerce the women into sex, prosecutors charged him not with rape or assault but with “corruption.” He was convicted of these charges and sentenced to “15 days in jail and a fine.” This is incredibly lenient compared to typical sentences for rape and sexual assault, and it is yet another example of euphemism being used to shield a state actor from accountability for rape.
• To  understand more about how the prison state enables rape, I highly recommend The Shame of Our Prisons: New Evidence, an article by David Kaiser and Lovisa Stannow from last October’s New York Review of Books. The article summarizes lots of recent research on prison rape from the Bureau of Justice Statistics, and I find it immensely useful for understanding the specifics of the problem.
• As I write this, I’m listening to a talk by Jonathan Nitzan titled No Way Out: Crime, Punishment & the Capitalization of Power. Nitzan is one of the authors of Capital as Power, and this talk analyzes mass incarceration and punishment through the lens of his analysis of capitalism. This provides an explanation for the seemingly unusual phenomenon of liberal capitalist states incarcerating on a mass scale.
• For another economic perspective on prisons, I also recommend Daniel D’Amico’s talk The American Prison State. D’Amico looks at incarceration and punishment through the lens of free market economics, specifically the Austrian school.

I hope you find these links interesting and informative. I’ll leave you with something you can do to help those imprisoned by the American state. Writing to prisoners can make their life inside the prison slightly less monotonous and more livable. For a good way to start writing letters to prisoners, I recommend writing to prisoners on their birthdays. You can find some information on political prisoner birthdays for April here.