Last week I had the great pleasure of attending the Association of Private Enterprise Education (APEE) annual conference. I saw many excellent presentations, including Ed Stringham’s talk on anarchism, Abigail Hall presenting a paper on how foreign wars bring repression home, David Skarbek discussing prison gangs as self-governing institutions that facilitate market exchange, Brian Meehan explaining regulatory capture in the private security industry, and presentations on the political economy of slavery by Jeffrey Rogers Hummell and Phil Magness. I also met Molinari Institute president Roderick Long and joined him in presenting on a panel on Lysander Spooner’s Legacy for the 21st Century. The following is based on what I presented there.
Lysander Spooner is perhaps best known for his passionate abolitionism. In a letter to The Commonwealth, Spooner wrote, “I have no sympathy with the pusillanimous and criminal statement, If slavery will let us alone, we will let it alone … I hope then to see freedom and slavery meet face to face with no question between them, except which shall conquer, and which shall die.” He articulated this radical antislavery position in such pieces as The Unconstitutionality of Slavery (1845) and A Plan for the Abolition of Slavery, a letter to the non-slaveholders of the South urging them to aid and abet slave revolts.
Long after the civil war and the passage of the 13th Amendment, some may question the relevance of abolitionism to the 21st Century. But slavery did not experience a clean and straightforward end. The 13th Amendment prohibited slavery “except as punishment for a crime.” In the South, this was followed by the passage of the Black Codes, which criminalized a litany of innocuous actions specifically for blacks. So rather than abolishing slavery, the 13th Amendment simply changed its form. This created forced labor that was arguably worse than chattel slavery. As Angela Davis explains:
Slave owners may have been concerned for the survival of individual slaves, who, after all, represented significant investments. Convicts, on the other hand, were leased not as individuals, but as a group, and they could be worked literally to death without affecting the profitability of a convict crew.
Let’s look to today. The Louisiana State Penitentiary, better known as “Angola,” was converted from a slave plantation to a prison, and is still used for forced agricultural labor. Sweatshop conditions exist in prisons across the country. Companies like Walmart, AT&T, and Starbucks all profit from this slave labor. So do war profiteers like BAE, Lockheed Martin, and Boeing. The racism of slavery persists; according to the Sentencing Project, 60% of prisoners are people of color, with 1 in 3 black men experiencing imprisonment in their lifetime. America incarcerates on a mass scale, with more than 2.4 million people imprisoned. The abolitionist movement has some unfinished business here.
Beyond his abolitionism, Spooner’s broader libertarian radicalism provides us with a useful framework for opposing this brutally unjust prison system. Spooner’s natural law approach to anarchism, articulated in Vices Are Not Crimes, provides us with a strong ethical and legal argument against the majority of the criminal code. In particular, it provides a solid argument against the drug prohibitions and immigration restrictions that have fueled mass incarceration, as well as against the anti-prostitution laws that have enabled police harassment and assault against many women, particularly transgender women of color. Spooner actually used the argument that vices are not crimes to oppose the establishment of a professional police department in Boston in 1885. Similar arguments can be used to support abolishing the police today. Where people wish to protect themselves from crimes and aggression, they have incentives to hire this sort of security on the market. A centralized state police force, however, socializes the costs of busybodies policing vices. Policing lends itself to violations of natural law in a Spoonerite sense.
Spooner further argued, in An Essay on the Trial By Jury, that it is a jury’s “right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.” He is articulating a case for what is often called jury nullification. Today, jury instructions exist to explicitly deny the right of a jury to judge the justice of laws. Organizations like the Fully Informed Jury Association (FIJA), seek to educate jurors on this right. Spooner argues, “if the government may dictate to the jury what laws they are to enforce, it is no longer a trial by the country, [*9] but a trial by the government; because the jury then try the accused, not by any standard of their own — by their own judgments of their rightful liberties — but by a standard dictated to them by the government. And the standard, thus dictated by the government, becomes the measure of the people’s liberties. If the government dictate the standard of trial, it of course dictates the results of the trial.” Reversing the trend from trial by jury to trial by government is one tactic available to us for thwarting the power of police, prosecutors, and prisons.
But perhaps the most interesting tactical insight prison abolitionists can glean from Spooner is derived from his American Letter Mail Company. The United States Postal Service monopoly behaved as we might expect a monopoly to: high costs and poor service. Rather than lobbying government to improve their services, Spooner directly competed with the Postal Service. This can point us towards a tactic for challenging any state monopoly: entrepreneurial direct action!
The state’s monopoly on law is riddled with perverse incentives. Police forces, employed by the state rather than by clients who seek protection for their persons and property, have no incentives to encourage them to prioritize violent crimes or property crimes over victimless crimes. To the contrary, there are various incentives that encourage them to redirect resources towards pursuing victimless crimes, such as sex work and drug offenses, rather than violent crimes. Asset forfeiture laws, for example, grant police the power to seize property that they believe was obtained or used in relation to a crime. In many jurisdictions, they can seize the property without convicting or even charging the property owner with any crime. The seized property is then auctioned off to financially benefit the police department. This introduces a profit motive to engage in more asset forfeiture. Violent crimes like rape and murder are rarely lucrative in this regard, but “crimes” of commerce and entrepreneurship such as drug dealing and sex work typically do implicate money and property. This means that police have a profit motive that encourages them to direct resources towards vice enforcement rather than thoroughly investigating violent crimes. Federal funding that is explicitly tied to militarization and vice enforcement exacerbates these perverse incentives.
Vice enforcement is often highly discriminatory and makes marginalized groups vulnerable to state violence. The criminalization of particular realms of commerce means that those engaged in such commerce are deterred from reporting violent crimes or property crimes, particularly any related to their work. Moreover, discriminatory enforcement deters marginalized communities from seeking police assistance. Many communities of color view police as an occupying army rather than an institution they can safely seek assistance from. As of 2011, 46% of transgender people were “uncomfortable seeking police assistance.” Under Secure Communities, local police forces share information with Immigration and Customs Enforcement (ICE), thus making immigrants fear interaction with law enforcement. This is the reality of modern American policing.
The state’s system of justice encourages diversion of resources away from finding abusers and towards discriminatory enforcement of vice laws. The practical effect is to guarantee that many victims of violence, abuse, and plunder have good reasons not to seek police assistance. The state then crowds out alternative security and justice options; indeed, it overtly seeks to eliminate them to preserve its monopoly on force and law. So many people who are among the most vulnerable to violence are deprived of avenues for security and justice.
Entrepreneurial direct action can help solve this problem. There are some examples of this being built, particularly by feminists and anti-racists. For example, the Gulabi Gang in India engages in direct action against domestic abusers and corrupt government officials, and sometimes also engages in legal arbitration. In New York City, the Audre Lorde Project trains local businesses and community spaces to defuse violent situations without calling the police. These forms of entrepreneurial direct action are community projects enacted without a profit motive, but we can also build for-profit attempts to provide alternatives to the state’s criminal injustice system.
In the age of mass incarceration, Spooner’s writings and actions provide us with many insights for building a prison abolitionist movement. From his uncompromising attacks on slavery, to his natural law critique of vice laws and policing, to his defense of jury nullification, to his entrepreneurial direct action, a Spoonerite approach provides us with tools to end America’s prison state.