Police State/Civil Liberties

Shrinking the Prison System

TGGP of the “Entitled to an Opinion” blog has an interesting post up on the prison-industrial complex, and he’s asked for some of my views on how to shrink the prison system in the near term. I have an extended essay on dealing with crime in a stateless social order, but obviously something like that is a good ways off, if it ever comes at all. In the meantime, what can be done to alter incarceration rates in the U.S.?

This is a serious matter, given that while the U.S. has only five percent of the world’s population, it has twenty five percent of the world’s prisoners. There can be only two possible explanations for this situation; either Americans are uniquely criminally inclined (a possibility that cannot automatically be ruled out: remember that Americans were the first to invent and use nuclear weapons), or American society suffers from gross overcriminalization.

When addressing the question of rates of imprisonment, the first question that ought to be asked is: What are the actual justifications for putting people in prison? The standard justifications are deterrence, or creating the threat of prison as an incentive for individuals to abstain from criminality; incapacitation, or restraining an individual so that they are incapable of committing more crimes, at least more crimes against the public at-large; retribution, or giving an individual their “just deserts” for past criminal behavior; and, lastly, rehabilitation, or re-training an individual to avoid criminality in the future.

Certainly, there are some crimes that are severe enough to justify removing an individual from society-at-large, for instance, heads of state that initiate aggressive war under false pretenses. Most people recognize that murder, maiming, robbery, rape, arson, kidnapping, home burglary, and other comparable offenses justify segregating an individual from others. In my view, the primary justification for such segregation is not that criminals are “immoral” in some abstract sense, but simply on the pragmatic grounds that such people are immediately dangerous to other people. Virtually all states, even the most ruthlessly totalitarian ones, maintain prohibitions of private criminality of this type.  However, it is also true that states first and foremost use their monopoly over law and violence to uphold and enforce the ideological superstructure of the state. For example, in a theocratic society, ordinary criminal offenses of the common type are joined together with blasphemy, heresy, sacrilege, apostasy, etc. as offenses against the state.  Likewise, in an overtly totalitarian state, ideological and political offenses are treated in the same manner as common crimes, and political dissidents are often regarded as being on par with common thieves and robbers.

While “liberal democracy” and state capitalism of the kind that exists in the industrialized countries is often considered synonymous with “freedom,” the reality is that these states are no less ideological than their theocratic or totalitarian counterparts. Dr. Thomas Szasz has argued that just as medieval Christian or contemporary Islamic states are theocratic in nature, so are contemporary liberal states are “therapeutic” in nature. By the standards of the laws of the therapeutic state, the most egregious offense against the state is the use of psychoactive drugs outside the approval of the “white coat priesthood” or the medical-industrial-complex. Consequently, the annual number of arrests for marijuana offenses is greater than the number of arrests for all violent crimes combined.

It would seem that the first order of business in reducing rates of imprisonment would be drug decriminalization along the lines of the Portuguese model that Glenn Greenwald discusses here. Similar decriminalization might also be applied to other “consensual crimes.” Still another measure might be to pursue alternative means of handling crimes of lesser severity. While most people agree that carjackers, holdup men, rapists, child molesters, and home burglars are necessarily incarcerated, can the same really be said of shoplifters, persons convicted of traffic offenses like driving without a permit, tax evaders, check forgers, larceny of relatively small amounts of money or property, vagrants, embezzlers, and trespassers? Are such people really dangerous enough to warrant keeping them under lock and key 24/7?  Could not such matters be handled in the same manner as civil offenses, like those involving liability or default on incurred debts? It might also be a good idea to stop incarcerating people for self-defense, whether against ordinary criminals or against PIGS.

Beyond that, however, is the need for a total re-thinking of how so-called “criminal justice” is actually done. Paul Craig Roberts has written extensively on the sham that the police state, prison-industrial complex and legal racket have become. This is an issue where both “law and order” conservatives and left-liberals miss the boat. Conservatives idealize agents of  the “criminal justice system” as real-life Batmen, who are only out to defend innocent crime victims, with no self-interest or ulterior motives of their own. The left views the “criminal justice system” merely as a tool of racist, classist, sexist, fascist, et al oppression, ignoring the fact that statist oppression transcends boundaries of race, class, religion, and culture. This is what I have written concerning the issues of crime and statism elsewhere:

On crime, I propose the following approach: We should be tough on crime but equally tough on cops, courts, and laws. On the issues of legal restrictions on the investigative and arrest powers of the police, the powers of the courts to prosecute the accused and impose sentences, and the powers of penal institutions to hold incarcerated persons and the conditions they are held under, we should take positions as “liberal” as those of the ACLU, the National Lawyers Guild, and beyond. However, when it comes to the right of private citizens to keep and bear arms, to use them in defense against criminals, and to form private organizations (neighborhood watches, militias, posses, private security guard services, vigilance committees, and common law courts) for the purpose of mutual self-protection against crime (including government crime), we should take positions as “conservative” as the Gun Owners of America, the Michigan Militia, and beyond.

And on the prison-industrial complex:

It is well-known that the United States maintains the world’s largest prison population. More than one quarter of all the world’s prisoners reside in US prisons. A grossly disproportionate number of these are blacks or other minorities. A comprehensive amnesty program is essential to any serious effort to dismantle the US Leviathan state. As a model for amnesty, we might look to that implemented by Saddam Hussein, President of Iraq, prior to the commencement of the current war. Most prisoners were given full amnesty, foreign spies excepted. Thieves were pardoned on the condition of victim restitution. Even violent criminals had their sentences commuted if the victim or the victim’s mother agreed to a pardon. If this was good enough for Saddam Hussein, it ought to be good enough for anti-state radicals in North America. Under such a general amnesty, the only remaining prisoners would be those who refused to compensate victims or whose crimes were serious enough to discourage the victim from granting a pardon. The rest of the prison population, from tax evaders to drug vendors to owners of “illegal” firearms to those convicted of violations of arcane regulatory statutes, would simply be cleared out. Likewise, those imprisoned for self-defense, whether against common criminals or the government (for example, Leonard Peltier, the surviving Branch Davidians or those resisting “no-knock” raids) should also be granted amnesty. Additionally, panels of legal experts should be commissioned to review the cases of those convicted of even the most serious crimes. Given the notorious incompetence of the US legal system, it is likely a significant number of these are innocent.

3 replies »

  1. Glad to hear your thoughts. I think decriminalization would be a step in the right direction, but as I’ve said I’m much more interested in the supply side legality of hard drugs. That’s where police put most of their effort into and hence where the most damage is being done. Marijuana users don’t form violent gangs that attempt to attain monopsony status over “turf”, crack & heroin dealers do fight for small-scale geographic monopolies.

    One question: you say you want to apply strict scrutiny to the state justice system (aka PIGS). But you also want leniency for citizen militias and the like. At some point doesn’t community law enforcement come to resemble the state variety and then require strict scrutiny?

  2. Guy Lawson advances the theory that full marijuana legalization would undercut the hard drug trade as cartels use marijuana profits to finance the production and distribution of harder drugs. I have no idea whether that’s true or not.


    I do think the criminalization of soft drugs has the effect of expanding the market for hard drugs. Alcohol prohibition had a similar effect.

    On militias: A difference is that community militias are drawn from the community itself, so individual militia members have a greater personal attachment to the community, whereas cops are simply bureaucrats with a gun working for a self-interested third party, i.e., the state. Further, I think the militia members should reflect the cultural norms of the community at large in which they operate, meaning it would be better for gay neighborhoods to be policed by the Pink Pistols, black neighborhoods by black militias, rural communities by NRA members, etc. and less culturally or ethnically distinctive communities by expanded neighborhood watches. Such militias identify with the community in which they function, while cops basically view civilians as the enemy.

    Of course, there can still be abuses, e.g., lynchings, persecution of unpopular people, etc. I don’t think I’d do away with all external controls on such groups. For instance, if such militias emerged in the present system, I’d say they’d still have to observe the Fourth Amendment, exclusionary rule, etc. and even in a more anarchistic system there would need to be common law limits on the “posse comitatus.”

  3. I think you’re right about being “part of the community”. Police now are often in a relationship like that of an occupying army. People don’t look to them to “serve and protect”.

    I think I’ve complained about it here before, but I’m not a fan of the exclusionary rule. It offers no defense to the innocent who have nothing incriminating to be found when the police violate the 4th amendment but only to those whom the evidence could be used against. It would seem simpler just to treat the violation of property rights involved as an offense like it would be if done by someone without a badge, and then punish both the suspect (if convicted) and the police for their respective acts.

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