One of the more difficult challenges the libertarian faces when advocating privatization is the case of prisons. There is good reason for this. The sincere libertarian, whether an anarchist or a misguided reformer, wants to do two things:
1) Remove from the state’s monopoly purview all functions the state merely monopolizes which are not inherently criminal in and of themselves.
2) Abolish those state functions which are inherently criminal violations of the libertarian non-aggression principle.
Perhaps no other thing the state does offers so much potential for privatization nightmare stories as prisons do. There’s a reason for this. Prisons themselves, as we understand the term today, are inherently abusive and criminal enterprises — whether managed directly by a state or a state-affiliated monopoly contractor.
Does that mean there will be nothing like prisons in a market anarchist society? Yes and no. Context matters. We’re really talking about two different things — “privatization” under statism is not the same thing as what will likely result in the marketplace if we were to abolish the state and make “law” a free market for consensual dispute resolution with justice understood as restitution rather than punishment.
Under corporate statism, a “private” prison is some company paid with stolen money BY THE STATE (in an environment in which big business is legally privileged anyway, through all sorts of political favoritism). The customer pays and it’s the customers interests that are served. When the customer is legally privileged in the way that the state (and its affiliated corporations) is to do things TO people without their consent, of course monstrous results should be expected. It’s all a matter of economic incentives.
Market anarchists want to turn the incentive issues around by making the “prisoner” the customer. Seriously. We’d really be abolishing prisons AS THEY ARE UNDERSTOOD TODAY (and more or less in line with classical anarchist thought on the topic).
To whatever extent there might be something we can compare to prisons, such would actually be high security hotels that cater to people trying to work off their restitution debts.
That is, the residents would seek to go there as a refuge because that’s the best deal they can get — because nobody else wants them around.
You know how some car dealerships offer “second chance” financing for people with bad credit ratings? Okay, now imagine “second chance” special residencies for people with bad “law ratings”.
The “prisoner” (resident, actually) would be free to leave at any time. They would be customers. Accommodations likely wouldn’t be luxurious, but most people wouldn’t want to endure inhumane treatment. In a freed market for such services, these private “prisons” would compete with each other to persuade “inmates” to move in. If some place starts getting abusive, people will move out for a better deal elsewhere.
Translations for this article:
- Spanish, Cárceles: Abolición, no Privatización.
spangler pensieve 
Great article! I completely agree and I think this is a very viable solution and can be applied today for our broken prison system.
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Agreed that government contractors should not be considered part of the private sector.
"Because nobody else wants them around" sounds more like social rejection than juridical penology. If literally nobody wants them around, they will have literally no opportunities to participate in the "freed" market, and virtually zero resources with which to be a "customer" of the "market" for "imprisonment." If there's room within anticapitalism for appeal to the BATNA argument ("best deal they can get"), well, then anticapitalism has too much in common with capitalism to suit my tastes.
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What do you do with murderers, rapists, and child molesters? Let them leave whenever they want to? How do you pay restitutions when what you took has no value, like someones life? Paying restitution might be fine for theft or destruction of property, but when someones life is lost or changed forever I don't think that should be an option. I guess if you consider the value of a life to be another life and the murderer was executed to pay restitutions this might be ok.
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So say in a stateless society I kill a homeless guy for kicks. Beat the shit out of him with a baseball bat till he's dead. He has no known living friends or relatives. To who would I owe restitution? And if I don't owe any restitution to anybody, does that mean I'm free to go about my business without any consequences? If I'm living in that community, I probably don't want me loose on the streets. Plus, if I have some social feeling and compassion I may be motivated to exact some retribution on the deceased homeless guy's behalf, to, in the words of C.S. Lewis, make "the evil of the bad man to be to him what it is to everyone else."
Are we really going to have "prisons" where "residents" are free to leave at any time? Seems if I was facing a $10 million restitution bill, for, say, murdering somebody in the course of an armed robbery, which I was supposed to work off for the rest of my life, I'd be getting out of Dodge pretty quickly. I'd go far enough away where nobody recognized me and would probably take up armed robbery again.
I just don't see how this works.
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Just a critique, but I wouldn't base the case for prison abolition on the non-aggression principle, only because the NAP can be pretty flakey at times. Other than that, it should be obvious that the prison system does the exact opposite of what it's claimed to do: instead of rehabilitating criminals, it adds to the social alienation which causes crime to begin with. Private prisons would be no different; in fact, if prisons were privatized there would be a greater incentive to keep people in cages than if those prisons were run not-for-profit by the state. Privatizing things like prisons and police doesn't do away with their power but simply transfers the power from one set of masters to another.
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@John,
I’ve generally thought about the widow/orphan/hobo problem in the context of something like wergeld. If I recall correctly anarchic Iceland instituted the concept of having the claim to one’s life homesteadable. This meant that anyone could take up the cause of bringing the killer to justice and collect the blood money on behalf of the slain, if there were no prior claims that would command respect (e.g. family, associates, friends). This method of respecting the right of someone to act as an agent of the victim, works as an incentivizing device for everyone to concern themselves with the death of even the relatively disenfranchised.
Of course in addition to that market mechanism above, the competing security producers would probably look to do these jobs pro bono. Largely, for the same reason that law firms do pro bono cases. If the street where a street dweller was slain is owned by someone who is concerned for their property values or what have you, they’ll have an incentive to make sure that justice comes to the slayer in order to maintain a reputation for safe streets.
I’m sure that there are other replies to this query.
The argument about the potential for criminals to abscond from a place that they’re recognized to a place they’re not might’ve been something that would’ve worked prior to the introduction of ubiquitous credit ratings checks. The information about the criminal would spread very quickly. Who would risk dealing with a person with such a bad rating, especially for such reasons? How will they leave town? How will they buy goods and services? I imagine that the universal ostracism would lead the criminal to seek out some option for redemption, and this is where Brad’s hotels come in.
Roderick has some good writing on the question on what’s to be done in the situation where a perpetrator looks to be facing a lifetime of restitution. He writes that the principle he works with is, “the penalty shouldn’t be morally disproportionate to the seriousness of the original damage. That means the strength of the case for a penalty’s being excessively burdensome is proportional to the severity of the burden but inversely proportional to the seriousness of the original damage.”
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This is a difficult issue, but it seems that while the privatization of prisons in the context of a State is a horrible idea, private prisons (and not just high security hotels, and not just limited to fulfilling the purpose of restitution) in the context of a stateless society would be a viable idea. Of course, I think such prisons in a truly free market would incarcerate far fewer people (i.e., the truly dangerous), and would presumably be part of and paid for along with the mutual protection societies and/or private defense agencies that would exist in a stateless society.
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Another thought (sorry for the multiple posts): The use of prison for punishment is a quite recent invention. Before that it was hangings, floggings, etc. Interestingly, some serious advocates of reform have half-seriously proposed the re-introduction of flogging in lieu of incarceration, pointing out that as barbaric as flogging is most people convicted of crimes would probably choose flogging over imprisonment. (What does that say about the cruelty of prison?)
I think we have to be concerned about the economic fact that in a truly free market floggings and hangings would be cheaper than prison. Presumably that's why these methods were used in the Old West. Prisons are expensive. Victims of crime aren't going to want to pay their private defense agencies to house the people who victimized them. And as a practical matter, I think it's safe to say that many prisoners aren't going to be capable of earning enough to earn their keep, let alone restitution. Presumably the private defense agency of the convicted criminal will be responsible for the cost of housing the criminal, but I'm guessing the private defense agency of the victim would want to have a say in the conditions and security in which the convict is housed. And what of the true outlaws who commit and are convicted of violent crimes while not being subscribed to a private defense agency? Who's going to pay for housing them? Wouldn't it be cheaper just to hang them? Or lock them up in a dungeon with bread and water, at the bare minimum expense? And if they're let go, isn't it likely such people would form outlaw gangs, just like in the Old West?
To partially answer my own questions, I think in a libertarian society animated by the libertarian spirit hopefully very few people would want to be part of a private defense agency that hangs people or throws them in dungeons. I also think it's logical to expect that "public interest" "defense" agencies would be formed that concern themselves with the rights and the plight of people who find themselves in the cross-hairs of other defense agencies but who didn't have the funds or the foresight to subscribe to their own defense agency.
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I once toyed around with idea of having an immersive virtual reality world used as a prison. Some time in the future, when technologies will be mature enough for this kind of thing.
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