As a young man I was a libertarian. In time the accumulated problems with the ideology led me to abandon it. But I remain a believer in its most fundamental moral insights (and argue libertarians haven’t any real understanding of them) and find some elements in the social thinking of people they admire to be very important. More negatively, I think their economistic style of thinking has done enormous damage to this country. Enormous. So I have not simply turned my back on it.
But as an ideology, it is bankrupt. Its smartest proponents are hamstrung by its theoretical blindnesses, blindnesses that make it a haven for hacks. No contemporary issue demonstrates this blindness more clearly than the growth pf private prisons. The following discussion grew from a facebook discussion because the issue is complex enough to outgrow that medium’s capacity to illuminate.
The curse of privatizing public responsibilities
For decades libertarians and classical liberals have argued that privatizing public agencies performing necessary tasks would make them more efficient. Privatize the national parks. Privatize the fire departments. Privatize the roads. Privatize the schools. Anarchists even argue for privatizing the prisons and the police. Let the “magic of the market” replace the inefficient and often corrupt hand of the bureaucracy.
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.
Privatized prisons give us a catastrophic example of this logic at work in the US today. Their record exposes the radical incapacity of libertarian and classical liberal thinking to understand the nature of human society, or of the freedom about which they continually lecture the rest of us.
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.
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.
Of course they deny this.
A libertarian FB commentator replied “Principled libertarians have to oppose ‘private’ prisons which are really public-private corporations partially profiting off laws libertarians oppose. Non-state operated prisons generally are not the equivalent of corporate ones. You could have non-for profit entities do it. It’s also true that some libertarians oppose prisons entirely in favor of restitutive justice. I lean in that direction, but I have some questions about it.”
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.
The term “laws libertarians oppose” is revelatory. Libertarians do not oppose all laws, especially laws protecting property rights. And my argument applies to people incarcerated for breaking those laws as well as laws libertarians oppose. The issue is not laws, it is law breakers and how to treat them.
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.
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.
In a libertarian society we get the likelihood of an even faster creation of de facto slavery. It is in keeping with libertarian ideologies that prisoners will be told they will get no ‘free rides’ while in the slammer. They must work. So long as their pay is low enough to not pay their expenses in full they are permanently in debt. Like the old company stores- only this time they are incarcerated as well. This already happens in the ‘free market’ of immigration and finding jobs abroad for people from poor countries. It is stupid to think this will not happen when a big organization’s financing depends on keeping people incarcerated.
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?
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’.
Given that choice I’ll take government with all its flaws, thank you.
Public Values
My libertarian critic writes “Imprisoning people is not one of my public values and whether people have public values or at least believe they do depends on their subjectivity.” This is exhibit A of my claim that libertarian style reasoning has rendered public values invisible. Almost no one has a public value of imprisoning people. The value is protecting people without regard to their status in society. It is a value nearly every American gives lip service to, most truly believe, and many disagree on how to implement. That is what democratic decision making is about.
In a democracy a public value is what a citizen claims society as a whole would benefit from if government acted to make it more fully realized than would be the case if left to purely private initiatives. Public education is an almost universal public value. National parks are almost unanimously favored as public values. Defense is another. Public health another. For the vast majority of us Social Security is. For many of us universal health care is a public value.
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.
Public values are not necessarily always good. Many of us think making contraceptives available is a public value and others think banning them is a public value. There are many such disagreements. People will always disagree (look at the disagreements among libertarians!) – and in a free society what is decided to be a public value is determined by processes where every citizen has equal weight at some point in the process. We call it democracy, and it is NOT simply majority rule. Going into that in any depth is complex and I wrote a book about the issue, but a good overview of the reasons why majority rule is NOT a definitiopn of democracy though it is a useful rule in some decision making contexts is my blog discussion.
The crucial difference between being a citizen and being a consumer is that at some point that matters all citizens are equal. Reform is in the direction of making that point more important when it gets subverted, usually by money. No one thinks that it is vital that all consumers have the same money. Citizenship applies to our relation to public values and being a consumer applies to some of our relationships to private ones.
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.
(Some additions and elaborations added 4/17/14)
Privatization of the US Prison System
Privatization of the US Prison System. An Infographic from ArrestRecords.com
“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.
“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 possbility 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 attonerys 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 Horowtiz has writtn 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.
It is difficult to reply to an argument that itself is not a unified statement, but rather interspersed within my original piece. I will cover what I think are his main points and urge Natasha if he wishes to continue to submit an actual statement. I will not respond to another reply formatted this way.
If prisoners can choose what prisons they are sent to, wouldn’t competition lead to their offering more and more lenient terms, furloughs, and such until they are no prisons at all? The logic of the market says that the buyer when given a choice will spend where they get the best deal. Who will enforce the prisons keeping their charges under lock and key?
And who will pay for the incarceration? If the prisoner must pay, then we get either the equivalent of slavery again, or dungeons for the poor and country clubs for the rich, regardless of the crime committed. If “clients of the defense associations” pay- then it is in the interests of defense associations to offer the least onerous possible incarceration to their clients, should they be found guilty by some magical nongovernmental process of determining the issue. If I think I might act rashly, let alone illegally, I would join an association that promised incarceration in name only.
If the defense associations pay they have to get the money from their clients- and we are back to the issue of the poor not being able to afford country clubs and the rich can. We are back to oligarchic privilege.
If the prisoner does not pay in either cash or labor where does the money to pay for the prisons come from? What if a person convicted has no defense agency supporting him or her? Again I emphasize Libertarians could not even contribute enough to get the family of Ron Paul’s chief fundraising strategist out of debt when he died from pneumonia since he had no insurance plan. They did not even get close. So if as Natasha suggests we need more libertarians, we would get even less charitable donations than we do now. Libertarians talk a good line but fail miserably at walking it.
Natasha claims competing defense associations with prison, judicial, and police services. constitute the enforcement arm of a left-libertarian market anarchist legal system. Many cases civil and criminal alike have no obvious outcome. Trials are needed and sometimes they get it wrong. Who pays for appeals and when they get cut off, who decides?
Let us say person A uses one of these agencies and person B uses another. The past history of private agencies from feudalism to the Pinkertons and the like killing workers and their families suggests those with the most wealth will triumph over those with less. If the workers had their own Pinkertons, we’d have war.
Citizens are equal in their having identical influence on a vital aspect of the political process- the vote. No equivalent exists for consumers. People today are citizens and consumers- so the rest of the comment makes no sense to me.
And of course the logic of competing agencies points towards feudalism because people will be buying protection, not for benign treatment if they commit a crime. The agencies that are most hard-assed in protecting their clients will get more clients- especially ruthless rich ones. The result is oligarchic feudalism pretending to be anarchy.
How democracy is not exclusive of anarchy is beyond me unless we are playing word games. My own book “Persuasion, Power and Polity” took democracy about as far as it can be taken in that direction, and no libertarian of any sort discussed it’s arguments and I suspect never will because it messes with their nice little categories based on market reductionism and inability or unwillingness to comprehend concepts like citizenship and public values.
I will not discuss medieval Iceland- an interesting example of no real relevance to the modern world. Even back then for every Iceland there were countless feudal estates that grew out of people establishing protection agencies to protect them after the fall of Rome. Those initially were the ‘libertarian solution’ and they took a long and bloody path to become states.
Since this went up many libertarians other than Natasha have said nasty things about it on Facebook. Mostly stupid nasty things. Facebook is a venue where they do not have to worry about writing anything more demanding than a sound bite, at which they excel.
Engage in a serious discussion? Not so much.
More evidence of a bankrupt ideology.
I confess – when I first read the heading of this post I thought you meant bankruptcy in a literal sense. It’s an odd irony that countries with ineffective penal systems also spend the most money doing so. Wasting money seems to be only a problem in these cultures when it’s spent on projects that actually create social benefits. The mindboggling part is how many self proclaimed conservative capatalists deny this – or worse, maybe they don’t.
Private prisons are part of a larger law enforcement movement that is growing like cancer as it seeks to frighten the world into needing their services. In this regard, I have a very Focault influenced perspective!
Thanks for a great blog 🙂
Thank you!