Police, Courts, and Prisons

Part 10 – Selling victims down the river

Lee Friday

I recommend reading Parts 1 through 9 before reading this essay

We devote a lot of resources to the prosecution of victimless crimes, as well as to the nonprosecution of crimes involving victims (see Part 8).  Do we have our priorities straight? Citizens pay the bill. The authoritarian state is the bill collector.

Any law which criminalizes an action which does not create a victim should be rejected out of hand. This was the approach of customary law. No victim, no offense. No harm, no foul. If the golden rule is not broken, no law is broken. As Bruce Benson wrote:

Law imposed from the top – authoritarian law – typically requires the support of a powerful minority; law developed from the bottom up – customary law – requires widespread acceptance. . . . A potential action by one person has to affect someone else before any question of legality can arise; any action that does not, such as what a person does alone or in voluntary cooperation with someone else but in a manner that clearly harms no one, is not likely to become the subject of a rule of conduct under customary law.[1]

When widespread acceptance was the basis from which laws developed, the incentive for law enforcement, for prosecution of lawbreakers, was very high. We have seen this with customary law (Parts 23, and 4), where people were highly incentivized to create reciprocal agreements in order to support victims in their efforts to extract restitution through pursuit and prosecution of lawbreakers. The victim (or her agent) was responsible for initiating pursuit/prosecution, which in turn triggered the obligation of other members of the ‘group’ to assist the victim. In other words, it was obvious to everyone that the law was in the hands of the victim. In contrast, under authoritarian law, the authorities constantly warn us “Do not take the law into your own hands!” Yet, these same authorities have proven themselves ineffective at crime resolution. A strange ideology, to say the least.

The Department of Justice website tells us:

We have laws to deal with crimes like robbery and murder. . . . Laws are rules made by government that forbid certain actions and are enforced by the courts.

If only that were true. This claim by the Department of Justice is unsubstantiated. In fact, the claim is refuted by the government’s own statistics (see Part 8). The courts are NOT enforcing laws against robbery and murder. 79% of homicides are NOT solved. 90% of robberies are NOT solved. Despite this level of incompetence, a frustrated victim is admonished by the government if he decides to pursue the perpetrator himself. “Do not take the law into your own hands. If you take the law into your own hands, you will be in violation of the law. Leave it us, because we are the experts. We are the professionals. We are the authorities!”

Likewise, as medieval kings were subverting customary law, the victim was declared to be a criminal if he resolved an offense himself.

. . . royal law imposed coercive rules declaring that the victim was a criminal if he obtained restitution before he brought the offender before a king’s justice where the king could get his profits. This was not a strong enough inducement, so royal law created the crime of “theftbote,” making it a misdemeanor for a victim to accept the return of stolen property or to make other arrangements with a felon in exchange for an agreement not to prosecute.[2]

VICTIMS  TREATED  DIFFERENTLY  BY  DIFFERENT  SYSTEMS  OF  LAW

How can a society create incentives to minimize crime and maximize resolution of crime? When speaking of society, we must use proper context, because society does not exist as a distinct, living, breathing entity. Therefore, the question we are really asking is “how can individuals create incentives to achieve these ends, and who are these individuals?”

Customary law grew from the premise that victims had an irrefutable right to extract just restitution from offenders. The offender was guilty of violating a law, and it was clearly recognized that the law was in the hands of the victim of the violation. Because reciprocity was the foundation of medieval law enforcement institutions, the incentives were extremely high for victims to initiate the pursuit and prosecution of offenders.

In contrast, under authoritarian law, the government grants itself a prosecution monopoly, while coercively denying victims their historic, and natural, rights. This eliminates the positive incentives for victims, and creates perverse incentives for ‘authorities’. The result is higher crime rates and lower rates of crime resolution. We have seen evidence of this in Parts 3, 5, 7, 8, and 9.

Humans always respond to incentives, which explains the dissimilar social effects of these opposing systems of law:

Authoritarian (state) law: High crime rate, Low crime resolution rate, Low victim restitution rate

Customary (people) law: Low crime rate, High crime resolution rate, High victim restitution rate

The prospect of restitution, to which the victim has a right, explains the high level of justice under customary law. The State’s denial of this right explains the low level of justice under authoritarian law.

A victim may suffer physical, emotional, and psychological harm as a result of an offence, harm which no amount of restitution can remove. Nevertheless, when the victim and offender came to an agreement on a level of restitution, the matter was considered settled. The wrong was righted. The offense which triggered a cost to the victim and a benefit to the offender had been reversed. This was the effect of customary law.

In contrast, authoritarian law does not seek to reverse the cost/benefit equation of an offense. Instead, politicians and bureaucrats leave the initial cost unresolved, and proceed to impose additional costs on the victim, the offender, and many other individuals. Costs are imposed on taxpayers, including the victim, to fund the State’s police/court/prison bureaucracies which usually fail to achieve their stated objectives. Non-monetary costs are imposed on the incarcerated offender through confinement in violent, drug infested prisons – thus accounting for low rates of rehabilitation and high rates of recidivism. When an offender is fined, this is a cost which benefits the bureaucracy, not the victim. All of these costs imposed by the State are externalized costs, which equate to profits for the State. The State always wins. Taxpayers always lose. Victims lose the most. Criminals sometimes lose, but they usually win because their crimes are often unresolved (see Part 8). Notice how authoritarian law favours the criminal over the victim.

THE  STATE  (AUTHORITARIAN  LAW)  MARGINALIZES  VICTIMS

Under customary law the victim was a willing prosecutor, lawyers did not exist, and the legal process was fairly straightforward. Judicial complexity is a product of authoritarian law. Subsequent to denial of restitution, the development of complicated, expensive court procedures served to further marginalize victims. As Benson tells us:

There were well-formulated reasons why the “evolution of the class [of legal advisors] has been slow, for it has been withstood by certain ancient principles.” Individuals not skilled in the art of pleading were less likely to be able to conceal their guilt. Furthermore, one litigant might be unable to hire a skilled spokesman while another could. Thus, rather than give one litigant an unfair advantage, custom developed whereby professional councillors and pleaders were not allowed. By the early thirteenth century, however, pleaders had begun to appear. The earliest records of a pleader identify John de Planez as pleading on behalf of Henry II, and Richard had a permanent contingency of pleaders. As with other legal developments under the English kings, the legal profession was developed to give additional advantage to the king. . . .

. . . Evidence was likely to be accurate in seventeenth and eighteenth century criminal trials since it was not unusual for a trial to take place within a week of the crime when witnesses’ recollections were relatively fresh. Also,

the accused will virtually always be the most efficient possible witness at a criminal trial. Even when he has a solid defense, the accused has usually been close to the events in question, close enough to get himself prosecuted.

The accused had no option but to speak in his own defense, because there were no defense lawyers to speak for him, which brings us to the major explanation for the pace of criminal trials before the mid-eighteenth century.

The accused was forbidden counsel. . . . The victim or other complaining witness, sometimes aided by constable and by the justice of the peace, performed the role we now assign to the public prosecutor, gathering evidence and presenting at the trial. As a result, jury trial was not yet protracted by the motions, maneuvers and speeches of counsel that afflict the modern trial.

The entry of lawyers into criminal trials would be a major factor in altering virtually all of the characteristics that facilitated the rapid disposition of criminal cases.

By the mid-1730s, victims had begun to employ private prosecution attorneys. Prosecution counsel were not used in great numbers, and they did not significantly change the character of criminal trials, but there was a significant consequence to their participation. Judges began to allow defense counsel if prosecution counsel was employed, and defense counsel had a tremendous impact on the criminal trial.

The primary defense counsel role was in cross-examination, and a number of structural changes in criminal trials are directly traceable to that process. First, access to the accused was sharply limited. Second, counsel had to know what the case for the prosecution was in order to defend his client. Consequently, “In place of the rambling altercation that had persisted into the practice of the early eighteenth century, the criminal trial underwent that articulation into prosecution and defense ‘cases’ that so characterizes adversary procedure.” Third, the demarcation of prosecution and defense cases meant that the burden of “proof could be recognized and defense motions for directed verdict at the conclusion of the prosecution case could come into play.” Fourth, the possibility of remaining silent to avoid self-incrimination became an option and ultimately a privilege. The idea that a defense was not necessary unless the prosecution had fully demonstrated guilt was forming. Finally, excluding evidence became a significant issue: “the necessary consequence of [allowing defense counsel] was that objections to the admissibility of evidence were much more frequently taken, [and] the attention of the judges were directed to the subject of evidence.”

The two judicial changes of rules of evidence and defense counsel quickly began to feed on one another. Defense counsel called on the existing rules of evidence and questioned the admissibility of evidence not covered in the first rules. At the insistence of defense counsel, judges’ attention became increasingly focused on issues of evidence; and the rules of evidence began to evolve into the complex result we rely on today. “These adaptations were meant as patches, applied for the purpose of repairing the inherited system. . . . No one could have foreseen that adversary procedure harbored an inner dynamic toward complexity so relentless that it would ultimately render criminal jury trial unworkable as a routine dispositive procedure.” . . .

. . . Victim participation in criminal justice was getting expensive at the same time that gang crime was developing. When a victim filed a complaint before a JP, for instance, he might have to pay for subpoenas and warrants if his witnesses and the suspect were not present. Other fees were incurred for the recognizances in which he and witnesses were bound over for trial, for the clerk of the peace or of the assize for drawing up the indictment, for the officer of the court who swore the witnesses, for the doorkeeper of the courtroom, for the crier, and for the bailiff who took the prosecutor from the court to the grand jury room. Beyond these fees, the level of the cost of attending court was uncertain, because the length of the wait for an appearance before a grand jury and the timing of the trial were not known. A victim often had to bear costs of food and lodging for both himself and his witnesses. The declining incentives for victim participation in crime control in the face of fluctuating urban and growing gang crime made public policing and prosecution inevitable. [3]

The marginalization of victims continues to this day. Benson wrote (footnotes and emphasis added):

“In contemporary America,” McDonald reports, “the victim’s well-being and fair treatment are not the concern of the criminal justice system or any other institution. The victim has to fend for himself every step of the way.” This is in stark contrast with the legal system’s historical concern for obtaining restitution for victims. And because of the incentives arising with restitution, victims willingly pursued and prosecuted offenders. But the politicization of crime has led to an ever-diminishing role of and concern for victims.

The police, who have incentives to wait and respond rather than watch to prevent, in effect create victims. When arrest statistics are important, then crime victims must be created. Furthermore, “the criminal justice system’s interest in the victim is only as a means to an end not as an end in himself. The victim is a piece of evidence. The police want to know ‘just the facts.’”

Similarly, the relative ease of making arrests in cases of victimless crimes tends to divert police resources away from controlling crimes that have victims. Because crimes with victims receive relatively less attention than they would with less criminalization, fewer of these crimes are solved[4] and deterred and there are more victims. Little wonder that citizens are increasingly dissatisfied with the public crime control process and are increasingly turning to the private sector for crime prevention.[5] But the victim is at a disadvantage there as well. In their interest group role, police have consistently raised strong opposition to many private efforts at crime prevention. Thus, a victim who takes a self-protection initiative faces significant risks of violating the law. And, of course, “when a victim’s self-protective measures do lead him to violate the law, it is no defense to say that police protection was inadequate.”

Conviction statistics are of primary concern to prosecutors, so the role that victims play in prosecution is generally conceived in terms of their function as witnesses. If the victim is likely to appear unconvincing or unsympathetic, if he has “done something stupid” and appears to deserve what he got, or if he has a criminal record, the prosecutor will dismiss the case or plea bargain in order to generate a conviction or avoid a loss. There is one perverse implication of this tendency. Lower-income individuals are victims of a disproportionate number of crimes but are also more likely to have criminal records themselves and to make less articulate witnesses. “Thus, it is more likely that these cases are given away by prosecutors than those of higher income victims.” Ironically, of course, one rhetorical justification for public prosecution is to ensure that poor victims receive the same justice as rich victims would be able to purchase if private prosecution still existed. Instead, the opposite has occurred. Under private prosecution, rich and poor victims acted as prosecutors themselves and were generally on a relatively equal footing.

The characteristics and aspirations of the lawyers in the prosecutor’s office also affect victims. . . . many lawyers use the public prosecutor’s office as a stepping stone to higher political office or to private law firms, so turnover among assistant prosecutors is very high and a prosecutor’s office is usually staffed with young relatively inexperienced lawyers. This “means that the prosecutors must use an assembly line organization for their work. . . . Different prosecutors are stationed along the various stages of the process and handle all the cases that reach the processing stage. . . . This means that the victim, who may have already explained his case to several different police officers now has to retell it to each new prosecutor.”

The victims’ cost of cooperating with prosecutors can be staggering. In addition to the initial loss to the criminal, victims face the costs of transportation, babysitting, and parking. More importantly, they can lose wages and they endure seemingly endless delays and continuances. There are also considerable emotional and psychological costs of having to confront an assailant, for example, or enduring a defense attorney’s questions.

Why would a victim choose to bear such additional costs beyond the original loss due to the crime? . . . As Wilson explained, there are few offsetting benefits for the cost of cooperating in prosecution except a desire for revenge, since stolen property is often not recovered, money loss is not restored, and there is generally no compensation for injury.

It should be clear that the typical crime victim has little to gain from participating in the criminal justice system. “If anything, the victim is exploited by criminal justice officials and defense attorneys to serve their personal and organizational self-interest.” But victims have not simply ignored such abuse. Many have simply chosen not to participate in the prosecution process . . .

Non-reporting is a natural reaction to the high cost of victim involvement with the criminal justice system, a reaction that has been common since the inception of criminal law. The avoidance of additional costs that exceed the personal satisfaction of seeing the criminal punished is not the only reason for not reporting crimes. The U.S. Department of Justice report on crime victimization in 1979 found that in approximately 10 percent of unreported crimes victims believed that the police did “not want to be bothered.”[6] This belief is probably justified given that many crime reports receive little or no attention by police departments . . . Fear of reprisal is another factor, but this also reflects victims’ perceptions that the criminal justice system is failing.

The role of the victim in the publicly provided crime control process and his subsequent treatment within that process provide significant disincentives for him to report crimes or cooperate in the prosecution of criminals. Many victims respond to those incentives by opting out, which clearly reduces the effectiveness of the public sector in achieving criminal justice. After all, “to the extent that there is less victim involvement than there would be if other sorts of remedies were available – such as restitution – then fewer crimes will be reported, fewer criminals will be successfully prosecuted, and more rights violating conduct will result.”[7]

In the absence of restitution, the suggestion that victims who cooperate with the prosecutorial process with all its attendant costs may be motivated solely by a desire for revenge seems completely understandable. Thus, it follows that the desire for revenge would be largely mitigated if victims’ rights to restitution were restored.

Lon Fuller pointed to the fact that restitution had two important consequences that promoted social harmony and maintained social order: 1) it tended to restore the victim and eliminate his desire for violent revenge, and 2) it benefited the offender in that he bought back the “peace” and his place in society. Indeed, the creation of criminal law appears to have generated greater social disorder precisely because victims were no longer “restored” to their original level of satisfaction and therefore became more likely to demand severe physical punishment.[8]

PRISONS

How is our authoritarian system of physical punishment working out? A majority of criminals are not sent to prison because authoritarian police and courts fail to solve a majority of crimes (Part 8). So, the question is, for the small percentage of criminals who are incarcerated, does this reduce or increase the number of crime victims? In other words, do prisons reform criminals?

Despite incessant talk about the need to reform criminals, rape, violence, and drugs are ubiquitous in twenty-first century prisons. William Gairdner explains:

All Canadian prisons have a very serious drug problem, and 80 percent of the drugs are taken “in the front door” by visitors, who due to Charter restrictions are difficult to search properly. . . . Visitors sue prisons at the first opportunity for personal-search infringements . . . Due to such Charter blockades, many drug dealers say they make more inside prisons than outside. . . . Inmates get away with a myriad of crimes against each other and against guards, which, Harris writes, “would be the subject of civil and criminal proceedings” if they happened anywhere else.[9]

In a 2013 Macdonald-Laurier Institute Publication, titled “Police-reported Crime Statistics in Canada, Still More Questions Than Answers”, Scott Newark reports (footnote mine):

. . . recidivists commit a hugely disproportionate share of crime in Canada. In this regard Juristat[10] itself recently confirmed that 59% of persons charged with homicide in 2011 had a previous criminal record (most for violent offences) and the Justice Minister has publicly noted that 15% of offenders are responsible for 58% of all crime . . . [11]

Considering the high level of lawlessness inside prisons, when we hear that “recidivists commit a hugely disproportionate share of crime in Canada”, this appears to indicate that some criminals are more bad when they leave prison than when they arrived. Perhaps we should be thankful that the authoritarian criminal justice system fails to solve most crimes, and therefore fails to send most criminals to prison.

I am not being facetious. Think about it. The authorities lock criminals up in a prison environment which encourages them to engage in the same activities – rape, violence, drugs – which landed them behind bars in the first place. Exposed to these conditions on a daily basis, we should not be surprised if even some of the less hardened criminals (victimless crimes) become more hardened. I cannot conceive of a better way to turn good people into bad people, or bad people into worse people. It is curious that we refer to prisons as correctional institutions.

There are some criminals who should never be released, under any circumstances; but here again, the State claims to be the best judge in these matters. Let us consider some of the background to, and results of, the State’s best judgement. William Gairdner writes:

I suggest mandatory reading for all parole board members should be Robert D. Hare, Without Conscience: The Disturbing World of the Psychopaths Among Us. The promotional material for the book gives the main conclusion:

Individuals with this personality disorder are fully aware of the consequences of their actions and know the difference between right and wrong, yet they are terrifyingly self-centered, remorseless, and unable to care about the feelings of others. Perhaps most frightening, they often seem completely normal to unsuspecting targets . . . Presenting a compelling portrait of these dangerous men and women based on 25 years of distinguished scientific research, Dr. Robert D. Hare vividly describes a world of con artists, hustlers, rapists, and other predators who charm, lie, and manipulate their way through life.

Clearly, they are highly skilled at fooling parole boards, too. Dr. Hare has designed the Hare Psychopathy Checklist, which is now the world’s most widely used screening system for detecting psychopathy in criminals. What is his professional and sobering conclusion? “On average, about 20 percent of male and female prison inmates are psychopaths,” and . . . “psychopaths are responsible for more than 50 percent of the serious crimes committed,” and . . . “the recidivism rate of psychopaths is about double that of other offenders,” and . . . the recidivism rate for violent psychopathic criminals “is about triple that of other offenders.” . . .

. . . Research has shown that criminal psychopaths who undergo cognitive and anger management training before release have an 82 percent recidivism rate compared with a rate of 59 percent for psychopaths who don’t take the program. According to Dr. Robert Hare, the world’s best-known expert on psychopaths, “These guys learn the words, but not the music.” – Michael Harris, Con Game: The Truth About Canada’s Prisons . .

. . . Hare also states not only that ordinary group therapy programs “do not work for psychopaths,” but that psychopaths released from therapeutic community programs are four times more likely to commit a violent offence than other (non-psychopathic) participants; in other words, the therapy “may actually have made them worse!” And why? Because, Hare concludes, psychopaths “are perfectly happy with themselves, and so they see no need for treatment.” Therapy just makes them more angry, and that’s because, although their behaviour is obviously maladaptive for society . . . it is perfectly adaptive for them.

With this knowledge in mind, we read a 2009 parole board report informing the public about criminals who commit homicide “while serving the balance of their sentences in the community” under various forms of release or supervision, which had the following devastating things to tell us:

During a 33-year period from 1975 to 2008, some 508 criminals who, after extensive psychological testing and interviewing were judged no danger to public safety by the NPB, were released from prison and in that period killed 557 perfectly innocent Canadians. . . . The report cheerfully announces that these homicides accounted for “less than 3 percent of total homicides” in Canada in that 33 years . . .

. . . The NPB has this to say in its Performance Monitoring Report (2007 – 2008): In the period between 1996-1997 and 2006-2007, offenders on statutory release [who had to be released by law because they had served two-thirds of their sentences] were over six and a half times more likely to be convicted of a violent offence than offenders on full parole . . .

. . . If we already know they are six times more violent, then why are we releasing them by law at two-thirds of their sentences? . . .

. . . There have been several suits instigated against – and many settled quietly by – CSC for having released dangerous criminals into society where they have wreaked havoc. [12]

In reference to those who oppose capital punishment because of innocent people executed by the State, Gairdner writes:

But in a sentence that rings with an equally horrible truth (in which I substitute updated numbers), Harris wrote: “If a court system in a jurisdiction with capital punishment ever executed 557 innocent victims in 33 years, it would be abolished. Yet CSC and the National Parole Board trivialize this horrific record behind heartless statistical percentages . . . Their sin is not imperfection, as CSC executives sarcastically claim, but a deadly arrogance that is blind to the human misery their policies cause.”[13]

As to lawsuits settled quietly (so much for government transparency) by CSC, these do not reflect restitution from offenders. Murderers have not made payments to victims’ families. Likewise, irresponsible members of parole boards who made numerous fatal decisions to release killers are also not held personally accountable. As Gairdner points out “NPB members cannot be sued for mistakes made in the pursuit of their duties.”[14] So who pays? Taxpayers. Taxpayers are held accountable for the actions of killers and parole board members. Board members are not fined, nor are they fired. When a group of individuals are permitted to externalize the cost of their own actions, costs will always rise – costs measured in terms of money, and in this case, lives.

Bureaucrats do not provide an environment which incentivizes criminals to discontinue their bad behaviour. As compared to society outside of prison, and in consideration of the fact that inmates are kept under lock and key behind prison walls, there is a high degree of lawlessness in prison. No wonder recidivism rates are so high. Bureaucrats refuse to insist that offenders compensate their victims, deciding instead that it is better to inflict punishment by locking them up in an unhealthy, hostile institution which encourages them to create more victims upon their release. An objective onlooker might well conclude that the conspicuous use of drugs and violence in the penitentiary must surely be by design, that the environment could not possibly be this bad unless it was an intended feature of the institution.

Norman kings eradicated the institutional structures of Anglo-Saxon law enforcement in order to profit from the administration of justice (see Part 2). The evolution of prisons is based on the same principle.

. . . government had demonstrated a willingness to bear large costs to punish criminals and to use prisons as punishment. What was required was “larger economic resources and more concentrated and activist political power and . . . [even] greater participation of the state in the administration of justice.” By the early 1800s, imprisonment was the major form of punishment for felons, and parliamentary actions in 1823, 1865, and 1877 effectively transformed England’s system of punishment into a public prison system financed by tax revenues.[15]

Bureaucratic budgets are funded coercively. Because bureaucrats are able to externalize their costs (taxes), they are thus incentivized to minimize expenditures on actual corrective measures. The less money they spend on reform, the more they retain for themselves. Furthermore, if they were able to reform all criminals, they would lose the repeat business of recidivists, making it difficult for them to justify their budget (in 2013, $117,000 for each federal inmate). That may sound cynical, but how else do we explain the facts? Prisons are supposed to be the most secure areas in society – to keep the bad guys in! Yet bureaucrats fail to maintain law and order inside these secure areas, which are extremely miniscule in size compared to the rest of society.

In civilizations governed by customary law, prisons were largely nonexistent. Prisons appeared in the late Anglo-Saxon period to serve one specific function:

Prisons, or gaols, were used on a small scale as early as the tenth century to detain individuals accused of an offense but awaiting trial. But the Anglo-Saxons did not consider prison to be an appropriate punishment. It would force the offender to be idle, making it difficult for him to pay his restitution, and it would be costly to the community.[16]

Exactly. When an offender imposed a cost on his victim, the Anglo-Saxons could not morally justify the imposition of additional costs on all members of the community. Two wrongs, or multiple wrongs, do not make a right. It was universally recognized that the original cost must be reversed in favour of the victim; and the only person who was responsible for reversing this cost was the offender. In Anglo-Saxon culture, accountability was defined as “you fix the damage you have caused”; you were expected to pay restitution either immediately or over a period of time. If you attempted to avoid your responsibility, it might cost you your life. This was a significant deterrent, and it was the prevailing view of justice – victim justice.

The Anglo-Saxons recognized that offenders could not pay restitution unless they were engaged in productive activity – and that activity could not take place in prison, notwithstanding the cost of the prison, which the community would not abide. Meaningful productive activity provides the means for restitution, but it also rehabilitates far more prisoners than do the deplorable prison conditions discussed above. Is it possible in today’s world for victims to be compensated by offenders who are not incarcerated? Yes and no. This will be discussed in Part 11. However, incarceration need not entail physical punishment, although it certainly does in modern prisons managed by authoritarian bureaucrats.

The coercive imposition of authoritarian law caused a transformation from victim justice to criminal punishmentphysical punishment, as evidenced by the culture of prison violence which bureaucrats have created. Physical punishment was considered illegal under customary law. As Benson noted, “Victims who exacted retributive punishment before giving the offender a chance to pay restitution were considered to be lawbreakers.”[17]

Let’s say I witness the brutal unprovoked murder of a loved one. I immediately react by killing the murderer. Would I be considered a lawbreaker under customary law? I doubt it. I expect this would be considered a reasonable exception to the general rule. But aside from such extreme circumstances, the issue of physical punishment is important. Many prisoners today are subjected to physical punishment, and many of them are repeat offenders. This is not a coincidence. Violent prisons are the “cause” of a significant portion of recidivism, the “effect.” It would be naive to think otherwise. If we prevent the violence, we prevent the creation of many new victims. This will be discussed in Part 11.

THE  POOR  SUFFER  THE  MOST

As Benson noted earlier, because the poor are often deemed to be unconvincing, inarticulate witnesses in the courtroom, prosecutors frequently dismiss or plea bargain these cases. The injustice of this prosecutorial approach flies in the face of the State’s justification for authoritarian law enforcement. As Benson pointed out, “Ironically, of course, one rhetorical justification for public prosecution is to ensure that poor victims receive the same justice as rich victims would be able to purchase if private prosecution still existed. Instead, the opposite has occurred. Under private prosecution, rich and poor victims acted as prosecutors themselves and were generally on a relatively equal footing.” This ‘equal footing’ was an outcome of voluntary participation in reciprocal law enforcement institutions. In contrast, says Benson:

Under the current system [authoritarian law], the cost of crime is disproportionately borne by the poor. They are victims of the largest portion of crimes committed and receive a disproportionately small portion of the benefits of public expenditures on both preventing and solving crime cases.[18]

Most crimes occur in poor neighbourhoods, not rich and middle class neighbourhoods. The majority of these crimes are not solved (see Part 8). ‘Police crime prevention resources’ appear to favour wealthier neighbourhoods. Benson continues (I have updated his dollar figures):

The probability that a woman from a family making under $5,000 a year will be raped is almost four times the probability that a woman from a family that makes $45,000 or more will be raped; the same is true for other violent crimes. The government’s performance in providing the poor with law and order is, to say the least, bleak. For the poor, privatization means switching from a system to which they currently contribute but from which they feel alienated to a system where they get the protection and justice they pay for.

Some might retort that the poor often do not pay taxes and that whatever public law enforcement they get is more than they would get in a private arrangement. But their rent includes the capitalized taxes of landlords and the prices they pay for other goods and services cover taxes paid by producers, so that argument is not valid.[19]

Under authoritarian law, administration of genuine justice is subordinated to special interest groups. Recall Benson’s observation from Part 9:

A person’s chances of police protection correspond closely to his position in the “geography of political power.” Much more attention is paid to the robbery of an important political figure than to the murder of an out-of-work, uneducated member of a racial minority.

Because authoritarian law enforcement is arbitrary, the system usually discriminates against the poor. It is not enough to wish that the poor had equal opportunity to access justice. It is not enough to demand reform of authoritarian law. Reform is a pipe dream. Any reform which seeks to produce a balance in the opportunities for all social classes to access justice cannot work under a system of authoritarian law.

Perpetuation of the coercive system of revenue (taxes) collection defines authoritarian law as a political instrument, completely open to the influence of special interest groups. Indeed, the survival of the system depends on the support of these groups. This support in turn depends on favourable treatment of these groups by the government. Favourable treatment includes not just arbitrary law enforcement, but also arbitrary law creation (to be discussed further in Part 12). Thus, political incentives lean in this direction, at the expense of the poor. It is the coercive aspect of the system – the externalizing of costs – which creates these incentives. Perverse incentives will persist as long as the coercion persists.

In contrast, under customary law, which is not a coercive system, there was a balance in the opportunities for all social classes to access justice. The voluntary nature of the system resulted in costs and benefits being internalized by all individuals. No one was able to externalize his costs onto someone else. As a consequence, strong incentives existed for individuals to form themselves into larger groups specifically for deterrence of, and prosecution of, offences. A modern-day counterpart to this freedom of association for protection was seen in Part 8 with a review of private protection agencies.

Politicians and bureaucrats do not attempt to create equal opportunities for justice for all individuals, or for all social classes. The whole concept of authoritarian law is to enable some individuals to benefit at the expense of others. Consequently, many victims are created. Individuals are fined and/or incarcerated for victimless crimes; and countless victims of violent crime suffer without restitution, while criminals escape responsibility. The essence of authoritarian law is that victims will be sold down the river, and most of them are poor.

Go to Part 11

 

[1] Bruce L. Benson The Enterprise of Law (The Independent Institute, 2011) pp 12-13

[2] Ibid., p 62 [Additional source provided by Benson: Richard E. Laster, Criminal Restitution: A Survey of Its Past History and an Analysis of Its Present Usefulness (University of Richmond Law Review 5, Fall 1970) p 76]

[3] Ibid., pp 57, 64, 67-9 [additional sources provided by Benson: Pollock and Maitland, History of English Law, vol. 1, p 211; J. M. Beattie, Crime and the Courts in England, 1660 – 1800 (Oxford: Clarendon Press, 1986) p 41, 354, 361, 375; John H. Langbein, The Criminal Trial Before the Lawyers (University of Chicago Law Review 45, Winter 1978) p 284; John H. Langbein, Understanding the Short History of Plea Bargaining (Law and Society Review 13, Winter 1979) pp 263-4; John H. Langbein, Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources (University of Chicago Law Review 50, Winter 1983) p 131; W. Best, quoted in Langbein, Shaping the Eighteenth-Century Criminal Trial, pp 131, 134

[4] See Part 8

[5] See Part 8

[6] This lack of faith in the police appears to be growing. See Stephen Easton, Hilary Furness, & Paul Brantingham The Cost of Crime in Canada: 2014 Report (Fraser Institute, 2014) p 101

[7] Bruce L. Benson The Enterprise of Law (The Independent Institute, 2011) pp 147-8, 151-2 [additional sources provided by Benson: William F. McDonald, “The Role of the Victim in America,” in Assessing the Criminal: Restitution and the Legal Process, ed. Randy E. Barnett and John Hagel III (Cambridge, Mass.: Ballinger Publishing Co., 1977) p 298-302, 307; James Q. Wilson, “Thinking Practically About Crime,” in Assessing the Criminal: Restitution, Retribution, and the Legal Process, ed. Randy E. Barnett and John Hagel III (Cambridge, Mass.: Ballinger Press, 1977) p xv-xvi; Research and Forecasts, Inc., America Afraid: How Fear of Crime Changes the Way We Live, Based on the Widely Publicized Figgie Report (New York: New America Library, 1983) p 105; Randy E. Barnett, “Pursuing Justice in a Free Society, Part One: Power vs. Liberty,” Criminal Justice Ethics 4 (Summer/Fall 1985): pp 50-72]

[8] Ibid., pp 70-71 [additional source provided by Benson: Lon Fuller The Law’s Precarious Hold on Life (Georgia Law Review 3, 1969): 539]

[9] William D. Gairdner The Trouble With Canada . . . Still! (Key Porter Books Limited, Toronto, 2010) p 367, 369

[10] Juristat is a division of Statistics Canada

[11] http://www.macdonaldlaurier.ca/files/pdf/Police-reported-Crime-Statistics-in-Canada-February-2013.pdf

[12] William D. Gairdner The Trouble With Canada . . . Still! (Key Porter Books Limited, Toronto, 2010) pp 371-74

[13] Ibid., p 374

[14] Idid., p 374

[15] Bruce L. Benson The Enterprise of Law (The Independent Institute, 2011) p 73 [additional source provided by Benson: J. M. Beattie, Crime and the Courts in England, 1660 – 1800, (Oxford: Clarendon Press, 1986) p 617]

[16] Ibid., p 71

[17] Bruce L. Benson To Serve and Protect, Privatization and Community in Criminal Justice (New York University Press, 1998) p 238

[18] Bruce L. Benson The Enterprise of Law (The Independent Institute, 2011) p 310

[19] Ibid., p 310 [additional source provided by Benson: [Judge] Richard Neely, Why Courts Don’t Work (New York: McGraw-Hill, 1982) p 140

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