Yet this uncomplicated principle, which is within the understanding of a child, is apparently lost on a majority in the U.S. Senate. Earlier this week the Senate voted 61-37 in effect to authorize the executive branch to use the military to capture and hold American citizens indefinitely without trial – perhaps at Guantanamo — if they are merely suspected of involvement with a terrorist or related organization — and even if their suspected activity took place on U.S. soil.

The provision, which is included in the National Defense Authorization Act, was drafted without a public hearing by Sens. Carl Levin and John McCain. Sen. Mark Udall sponsored an amendment to remove the power, but the amendment was defeated. A related provision requires that terrorism suspects who are not citizens be held by the military rather than being tried in a civilian criminal court. (The executive branch can waive this requirement after certifying to Congress that the waiver is a matter of national security.)

The right of habeas corpus is preserved for citizens, but this is the barest minimal protection of a suspect’s rights.

The act passed today (Friday, December 2) and has to be reconciled with the House version.

Undermining Criminal Justice

What we have here is a shameful move to further undermine two or more pillars of the traditional American criminal justice system (to the extent it still exists). Suspects are just that: suspects. Before being imprisoned, they are entitled to notice of the charges and a proper trial before a jury in which the government has the burden of proof.

Moreover, the United States has an old principle of law that severely restricts the military’s involvement in domestic law enforcement. As Gene Healy of the Cato Institute notes,  the 1887 Posse Comitatus Act sets “a high bar for the use of federal troops in a policing role. That reflects America’s traditional distrust of using standing armies to enforce order at home, a distrust that’s well-justified.” (See Healy’s Freeman article “Blurring the Civilian-Military Line.”)

Some downplay the significance of the Levin-McCain provision because it merely would codify powers already exercised by Presidents Obama and George W. Bush. Perhaps. But these are powers no president should have ever possessed. So they shouldn’t enshrined in law.

Udall says the provision goes further than mere codification: “[T]he secretary of defense, the directors of national intelligence and the FBI, and the White House — along with numerous defense experts — have said this would amount to a significant expansion of the military’s detention authority. . . . These changes to our laws would also authorize the military to exercise unprecedented power on U.S. soil.”

Regardless, make no mistake about the scope of the provision: “[T]he statement of authority to detain does apply to American citizens and it designates the world as the battlefield, including the homeland,” said Sen. Lindsey Graham in defense of the provision.

Veto Possible

The White House suggested a veto of the bill is possible because of the detainee provisions. According to a White House statement (pdf):

[A]pplying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.

This could be a cover for other objections, such as restrictions on presidential power. After all, Obama has never forsworn the power to treat Americans the barbaric way José Padilla, an American citizen, was treated by the Bush administration. Indeed, Obama claims the power to execute American citizens without due process – and has done so in the case of Anwar al-Awlaki. Still, a veto is a veto.

Sen. Rand Paul made his own attempt to kill the detention section. (In this video of his Senate speech, he explains why such power is both wrong and unnecessary.) “Should we err today and remove some of the most important checks on state power in the name of fighting terrorism,” Paul said, “well then the terrorists have won…. [D]etaining American citizens without a court trial is not American.”

Paul also helped kill an amendment that would have permitted the indefinite detention of an American citizen accused of terrorism even after acquittal at trial.

The senator’s father, Rep. Ron Paul, Rep. Justin Amash called the provision “one of the most anti-liberty pieces of legislation of our lifetime.”

Levin and McCain answered their critics in a Washington Post op-ed, writing, “[T]he administration has broad authority to decide who is covered by this provision and how and when such a decision is made.”

Are we supposed to be comforted by unchecked presidential discretion? As I recall, the American revolution had something to do with an objection to arbitrary power.

“Essentially,” writes Andrew Napolitano, “this legislation would enable the president to divert from the criminal justice system, and thus to divert from the protections of the Constitution, any person he pleases.”

Crime or Act of War?

Should terrorism be handled as a criminal act or an act of war? Those who know government’s inherent threat to individual freedom must insist on the former, if for no other reason than that, under cover of war, government can always be counted on to assume tyrannical powers, as it has since September 11, 2001. Perpetual war — in which America itself is considered a battlefield — is hardly conducive to liberty of any kind.

“No nation could preserve its freedom in the midst of continual warfare,” James Madison said.

The free market, and the free society in general, cannot be understood without also understanding their indispensable political, legal, and moral conditions. Freedom from government whim is one of those conditions, despite its inconvenience for those who lust after power.

An ordinance to introduce the proposal was passed unanimously by the county supervisors last week, and a vote is expected shortly. Whether or not it passes, Stone may be correct in stating, “I think we’re blazing a new trail here. In these very challenging economic times, I believe this can be a source of revenue. I believe this can return 3 to 5 million (dollars) a year during these very challenging economic times.” (Emphasis added.)

If passed, a “prison hotel” fee could be charged to those able to pay, with a lien placed on the assets and property of anyone who objects. In short, a person imprisoned for possession of drugs, or for obstruction of justice (such as speaking back to a police officer) could lose his home, car, or bank account to the county for payment of “hotel” fees, drug testing, medical care, and parole costs. A defendant with “equity” would also be charged attorney fees for using a public defender. As for those using the “services” of a parole officer, Stone states, “The County will do the same on the parolee’s parents’ property if that’s the only way to get the money.”

Designated Officer

Riverside County Counsel Pamela Walls raises revealing objections. The primary one addresses the legal authority of the council to seek reimbursement. She offers a solution to what is clearly viewed as an administrative obstacle: “In order to recover such costs, the Board must adopt an ordinance which designates the officer responsible for the collection of moneys ordered and the average per-day costs in the County jail or other local detention facility.”

In a similar practical vein, Walls warns that the fees may not return much money because so many prisoners are indigent. In this, Walls misses the point on two levels. First, the thousands of prisoners who do have assets are low-hanging fruit, ripe for government plucking; it is easy money for cash-starved bureaucrats.

Second, and more significantly, a “hotel” fee would provide  ominous incentives for future income. It would become tremendously profitable for the county to imprison people with houses, mutual funds, and retirement accounts. Such people constitute the respectable class of society to whom police often issue a polite warning rather than an arrest warrant. Now, warrants would be where the profits live.

Moreover, the fee establishes a strong financial incentive for courts to find people guilty. Supervisor Stone assured the public, “[I]f a defendant is found innocent, he will not be charged for the time he served.” Some of us “in the public” hear these reassuring words as, “Courts will be biased toward revenue-enhancing ‘guilty’ verdicts.”

Prisons for Profit

America has long recognized the use of prison labor as a source of profit. Section 1 of the Thirteenth Amendment reads, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

Under law, a prisoner’s time and his labor belong to the State. In America two basic models have been used to exploit the convict’s labor: the contract system and the public account system.

In the contract system a private business agrees to purchase the labor of X convicts and usually establishes a work shop within the prison to produce goods that will be sold on the market. When the work must be done on site – for example, at a farm –the convicts are generally transported there as needed or leased-out to be “cared for” by the leasing business concern at taxpayer expense.

Today, the laboring convicts are often given a tiny portion of the profits on a piece-work or hourly basis. This provides incentive to the workers without significantly reducing profit to the business or the prison.

Direct Exploitation

In the public account system the prison authority directly exploits the convicts’ labor by using them in public works, in producing goods to be sold in limited venues, or in tasks for which paid laborers would otherwise be required (such as cleaning roadsides). Prisoners who refuse to work can lose privileges, including “good time” credits that reduce sentences. Not surprisingly, most prisoners decide to work.

If Riverside County is successful in charging prisoners for their own maintenance, then the profits to made from imprisoning a person will proceed to a different, higher level. No more will the profits be limited by the number of hours or skills a convict can provide. His real estate and business, his goods and bank account, could be forfeited to the coffers of governments on every level. “Prison hotels” will entice authorities to arrest and convict people of means.

The arrest in New York of former IMF chief Dominique Strauss-Kahn on sexual assault charges is being handled quite differently in France and America. The French are enraged by Strauss-Kahn’s “perp walk,” the American police practice of parading an accused in public, allowing the media to take photographs and yell questions. In France, releasing images of an accused before conviction violates his presumption of innocence and so is illegal.

Divergent cultural traditions account for the different reactions in the two countries. For one thing, the French are notoriously tolerant of their politicians’ sexual misdeeds, including criminal ones, which are rarely publicized. They are also less protective of accusers; for example, Slate France unapologetically published the name of Strauss-Kahn’s alleged victim. By contrast, the American media have a strong tradition of naming the accused and protecting the accuser.

Culture and the media quite properly evolve their own standards, as do law enforcement, legislatures, and the judiciary. Are there sound legal reasons for publicly identifying or protecting either the accused or the accuser?

Criminal Procedure

Anonymity for either cannot be rooted in an appeal for privacy because a criminal procedure, to be just, must be public and transparent rather than secret. Nor can protection be based on a person’s prominence or other special characteristic because that would embed a double standard into the law, creating legal privileges.

It is an almost universal practice in America for the police to release an accused’s name and to include it in public documents. Indeed, it is increasingly common for the photo of those arrested to be posted on police public websites.

Yet in sexual assault cases the names of accusers are typically withheld. Court documents often refer to accusers as “Jane Doe,” and judges have been known to gag the media.

Two common explanations are advanced for treating such an accuser’s identity so differently: 1) to protect the purported victim from further trauma; and 2) to encourage future victims to come forward. Neither of these rests on theories of judicial transparency or equality under the law. Indeed, they violate them.

Begging the Question

The first defense appeals to compassion: A sexual assault victim should not be brutalized a second time by publicity. This defense fails, however, because it presumes precisely what is in question: Is the accuser a victim? Until a fair trial occurs, it is the defendant, not the plaintiff, who should be presumed innocent, with the burden of proof resting on the prosecution. Moreover if compassion protects the accuser’s identity, then logically it should also protect the accused, who might otherwise be falsely dragged through an ordeal that ruins his reputation.

The second defense speaks to future accusers. If identities are publicized, women will not report crimes such as rape. By lowering standards of accountability, which identification provides, it does seem likely that reports would increase. But how many would be false reports? There is nothing positive about increasing the number of accusations unless they are accompanied by standards to ensure their accuracy and the rights of the accused.

What’s more, an accuser’s anonymity decreases the likelihood of a fair trial. When an accused rapist is publicly named, other victims can come forward and add their testimony. By contrast, when an accuser remains unnamed, witnesses who could discredit her account are unaware of the proceedings.

Equal Treatment under Law

Transparency, equal treatment under law, and a defendant’s presumption of innocence all seem to dictate that both accused and accuser should be identified.

These issues and others surrounding the Strauss-Kahn case will not disappear. Indeed, the case is poised to become more explosive as the accuser herself will likely be harshly judged, at least in Europe.  Strauss-Kahn is prominent in France; as a member of the Socialist Party, he was widely expected to replace Nicolas Sarkozy as president. A recent poll found that 57 percent of the French public believes the arrest is part of a political conspiracy; many suspect American involvement.  The percentage of conspiracy theorists rises to 70 percent among French socialists.

American police would be well advised to avoid further perp walks, the purpose of which does seem to be humiliation rather than justice.

Every year, an estimated one million Americans are arrested on  DV charges. Typically they spend several days in jail. According to the Criminal Justice Review (pdf), only 30.5 percent of those arrested are convicted. The vast majority  of those convicted plead guilty to a lesser crime to avoid trial and possible imprisonment. Thus the percentage of those actually guilty of DV may be considerably lower than 30.5 percent.

If 70 percent of arrested muggers were released without charge, if most of the 30 percent detained were given plea deals, questions would arise about “overzealous” police and prosecutors. With DV the opposite happens. The low conviction rate brings cries for more aggressive policies and prosecution.

Why?

DV is a deeply politicized issue. Gender feminists cast it as a quintessential crime of male oppression; “get tough” prosecutors and politicians use it as a career path; and an “industry” of researchers, social workers, lawyers, therapists, and other experts acquire status and income from DV.

The incentives are for more and not less enforcement, and those accused become increasingly vulnerable to false accusations and the suspension of their due-process rights.

The Evolution of DV Arrest Policy

DV policies vary from state to state, but the general trend is common. Decades ago DV was usually classed as a misdemeanor, and an officer could not make a criminal arrest unless he witnessed the abuse or had an arrest warrant. Instead the emphasis was on separating the parties. In the early ’80s DV advocates protested this “leniency,” and states began to allow warrantless arrests for unwitnessed incidents. Probable cause was still required; typically it was based on the presence of physical injury.

The federal Violence Against Women Act of 1994 (VAWA) changed the landscape in at least two significant ways.

First, VAWA provided grants to states “to promote arrest and enforce restraining orders.” In 2007, for example, Alaska received almost $16 million in grants. (For information on VAWA grants to specific states click here.)

Second, VAWA endorsed “mandatory arrest” policies that legally require police to detain an accused even without clear  evidence.  According to the American Bar Association Commission on Domestic Violence, as of 2007 19 states and the District of Columbia had such policies. The concept of probable cause is not abandoned, but arrest practices often discard it in several ways, including: assuming abusers are male (for example, the Nebraska statute refers to suspects with the words “he” and “his”); counting vague concepts such as “fear of imminent serious physical injury” (as in the Oregon statute) as probable cause; and strongly advising police trainees to err “on the side of caution” and believe the accuser.

When VAWA was reauthorized it endorsed policies that preferred arrest, but did not mandate it; such policies were adopted by several other states. Nevertheless, because non-arresting officers usually need to file a report to explain their decision, both policies tend to function in much the same manner. (For a table of domestic arrest policies by state, click here.)

The Harms of Mandatory and Pro-Arrest Policies

Mandatory and pro-arrest policies inflict serious harms, from moral to utilitarian, including:

• The accused are often denied constitutional rights. The Fourth Amendment requires real “probable cause” before arrest rather than an officer’s discretion. The Fifth and Fourteenth Amendments prohibit government from depriving people of liberty “without due process.”
• No distinction is made between first-time and repeat offenders, between trivial and major incidents.
• The de-emphasis on evidence encourages false accusations and the use of tenuous arrests in divorce proceedings.
• Victims are marginalized. Since prosecution is at the sole discretion of legal authorities, true victims may be reluctant to report loved family members or bread-winners.
• Police services are misdirected. According to a study in one state, before pro-arrest policies, DV arrests accounted for 7-15 percent of total arrests; afterward they accounted for over 30 percent.
• The court system is burdened. According to one survey (pdf), 15 percent of cases in criminal court now involve contempt, typically from violating a DV restraining order.

No solid evidence indicates that current policies prevent domestic violence. Indeed, a former Ohio prosecutor expressed a common sentiment: “In the past, the officers would intervene or separate the parties to let them cool off. Now these cases end up in criminal courts. It’s exacerbating tensions between the parties, and it’s turning law-abiding citizens into criminals.” The criminalization of common conflicts should be a last resort.

No one wishes men to beat their wives (or vice versa) with legal impunity. But current DV arrest policies are unjust in the opposite direction. All arrests must respect due process for the accused and the wishes of the victim. All arrests must be based on evidence.

Traditionally civil offenses now resemble criminal ones in their punishment. For example, it is commonplace for judges to imprison “deadbeat dads” who cannot pay child support for civil contempt of court. Not even children are exempt. Petty offenses such as “sexting” between teens are felonies and can be severely punished; in grade schools police are sometimes called to control children who throw temper tantrums. Everyday life has been criminalized.

The book Three Felonies a Day: How the Feds Target the Innocent, by libertarian attorney Harvey Silverglate, details how you are a felon right now because going through one day without violating the law repeatedly is virtually impossible.

The Law Meets Economic Reality

Now, confronted by a powerful coalition ranging from the conservative Heritage Foundation to the liberal American Civil Liberties Union, a congressional committee is scrutinizing the legal morass and needless suffering that Congress itself has been instrumental in creating. But Congress’s new willingness to focus on overcriminalization may not be humanitarian.

The U.S. Bureau of Justice Statistics states that “in 2008, over 7.3 million people were on probation, in jail or prison, or on parole at year-end — 3.2% of all U.S. adult residents or 1 in every 31 adults.” Juvenile facilities held 92,854 individuals, according to the 2006 Census of Juveniles in Residential Placement.

In 2008 the cost of imprisonment was estimated at $15,000 per inmate. In the crushing grip of recession America cannot afford all the “justice” it metes out.

Some states now give judges cost-of-sentence guidelines to use while deliberating. Regarding the guideline given to Missouri judges, the Washington Independent reports, “For someone convicted of endangering the welfare of a child, for instance … a three-year prison sentence would run more than $37,000 while probation would cost $6,770. A second-degree robber … would carry a price tag of less than $9,000 for five years of intensive probation, but more than $50,000 for a comparable prison sentence and parole afterward. The bill for a murderer’s 30-year prison term: $504,690.”

Whether from economic necessity or a bout of common sense, legislators are acknowledging the negatives of overcriminalization. These include: the misallocation of resources; the vesting of widespread discretion in police forces, who abuse it with impunity; and the decimation of the civil liberties of the accused, including the extraction of plea bargains from innocent people who are threatened with life-destroying prison terms.

The Face of the Law’s Victims

Abner Schoenwetter, formerly a Miami seafood importer, chose to fight. In 1999 he was accused of buying lobster tails from a long-time supplier. The purchase allegedly violated harvest regulations in Honduras. Among the violations: The lobsters were in plastic bags rather than cardboard boxes. Schoenwetter provided American prosecutors with evidence from Honduran officials that no law had been broken; the attorney general of Honduras filed a friend-of-the-court brief stating that the cited regulations had been voided. Despite having no prior record, Schoenwetter was convicted and served six years in prison. Now released, the convicted felon is without a job to support his ill wife and faces possible eviction from his home. A good man with no criminal intent has lost the fruits of a lifetime due to the zealous application of Kafkaesque regulations.

The Heritage Foundation and ACLU have chosen Schoenwetter to testify before the congressional committee as the face of those brutalized by overcriminalization.

Toward a Solution

While by no means an ideal solution, certain practical steps could greatly alleviate the suffering of the law’s innocent victims. They include:

• eliminating the ability of civil judges to imprison debtors for contempt of court;
• reestablishing the need to prove “criminal intent” for criminal charges;
• ceasing to prosecute victimless crimes, like drug use and sex between consenting adults;
• eliminating prosecutorial immunity for corrupt or excessive prosecution;
• enforcing constitutional protections such as “the presumption of innocence”; and
• making all courts, including family courts, transparent.

Overcriminalization threatens everyone. It does not matter how peaceful or law-abiding you mean to be. Today you are a criminal. Tomorrow you may be a prisoner.

people have apologized for the past crimes of the groups with which they identify: the U.S. for Japanese internment, the Church for Galileo, Swiss bankers for Nazi money laundering, even the Japanese (kind of) for their war crimes. I’d like to see psychiatrists do the same—to admit that unusual preferences are not ‘disease,’ affirm that it is wrong to treat people against their will, and turn their backs on the ‘greats’ of their profession who believed in and practiced coercive therapy.”

I am grateful to Caplan for calling attention to a problem most people prefer to ignore. His expectation will, however, not be fulfilled, and it is important to understand why. Claiming competence in astronomy and incarcerating heretics are not integral to the identity of the Catholic Church. In contrast, claiming competence in predicting “dangerousness” and incarcerating persons alleged to be so because of “mental illness” are integral to the psychiatric enterprise. Wikipedia defines civil commitment as “the practice of using legal means or forms as part of a mental health law to commit a person to a mental hospital, insane asylum or psychiatric ward against their will and/or over their protests. . . . A common reason given for involuntary commitment is to prevent danger to the individual or society.”

Psychiatrists alternately deny and delight in possessing special professional skill at detecting future “dangerousness” that entitles them to the special power to incarcerate individuals they so stigmatize in prisons that masquerade as hospitals. The American legal system makes heavy use of psychiatric determinations of dangerousness, as a result of which vast numbers of Americans are deprived of liberty and, at the same time, of opportunity to demonstrate the injustice of their detention. Examples abound.

Kafka in Court

In March 2004 Susan Lindauer was arrested in Maryland and charged with “acting as an unregistered agent of a foreign government.” She faced up to 25 years in prison. Instead of trying Lindauer, government psychiatrists declared her mentally incompetent to stand trial and incarcerated her at the Carswell Federal Medical Center in Texas, a facility described as providing “medical and mental health services to female offenders.” But Lindauer was not an offender. She was an innocent American.

After “hospitalizing” Lindauer for 18 months, her “medical” torturers concluded that, although she was still mentally ill and incompetent to stand trial, she no longer needed psychiatric “care.” Released from detention, she returned to Maryland where federal court services referred her to a private agency for counseling. According to a motion filed by her attorney, her counselor, Dr. Bruke Tadessah, said, “That evaluation showed a diagnosis of post traumatic stress disorder due to her experiences at Carswell.” Last January the federal government dropped its case against Lindauer as ”no longer in the interest of justice,” implying that her psychiatric persecution had been in the interest of justice.

Consider the contrast. Inmates of American mental-health facilities are stigmatized as “mental patients”; their torture is called “treatment”; and they are regarded as the beneficiaries of a caring government’s therapeutic services. The inmates at the Abu Ghraib prison in Iraq were not stigmatized as “mental patients”; their torture was not called “treatment”; and they were regarded as the victims of government-sponsored “detainee abuse.”

Indefinite Incarceration

When Donald Schmidt was 16, he molested and drowned a 3-year-old girl. Under California law juvenile offenders who commit serious crimes can be kept in the system only until they are 25. But Schmidt’s detention has been extended under the state code that allows “continued detention if a jury finds the inmate has a mental disorder, defect or abnormality that causes the person to have serious difficulty controlling his or her dangerous behavior.”

What is Schmidt expected to do to get a divorce from his “doctors” and regain his liberty? Every two years he can petition for release and hope that a judge will order a “trial,” letting jurors decide whether he remains a “danger to society.” Anticipating another such contingency, a Santa Cruz County district attorney Bob Lee declared, “We believe he’s a psychopath.” Richard A. Starrett, a clinical psychologist, agreed that Schmidt was still a danger, though “not a psychopath.” Barry Krisberg, president of the National Council on Crime and Delinquency in Oakland, California, called Schmidt’s situation “one in a million.”

The claim that Schmidt’s indefinite psychiatric sentence is unusual is typical of the deceit and depravity intrinsic to forensic psychiatry. John Hinckley, Jr., never convicted of a crime, is serving his 28th year of psychiatric imprisonment. Evidently the government’s greatest psychiatrists need more time to cure him of dangerousness.

Psychiatry is the political legitimation of the incarceration of innocent individuals under psychiatric auspices, a practice that appears to enjoy near-universal approval by people in modern societies. Recognition of the fact that noncoercive psychiatry is an oxymoron is obscured by the concurrent practice of seemingly consensual “therapy.” I say “seemingly” because the mental-health professional retains the privilege and obligation to deprive his patient of liberty if he “poses a danger to himself or others.” As a result, psychiatrists and the press regularly tout psychiatric “reforms,” while the “doctors” engage in ever-increasingly refined forms of psychiatric depravity, supported by the unquestioned and unquestionable premise that “dangerousness” justifies imprisonment called “hospitalization.”

In the published report of a 1981 workshop titled Behavioral Science and the Secret Service, sponsored by the prestigious Institute of Medicine, Robert Michels, University Professor of Medicine and of Psychiatry at Weill Cornell Medical College in New York, asserted that “most mental health professionals believe that there is no major ethical dilemma if it is in the patient’s interest to violate his confidentiality, and that it is generally in the patient’s (as well as society’s) interest to prevent a major violence.” The assertion that “most mental health professionals believe” that violating a defendant’s Sixth Amendment right to trial serves his interest is evidence of psychiatric depravity, not morality.

To make matters worse, a few pages later the workshop reporter informs us that “Some conferees, including psychiatrists Robert Michels and Loren Roth [a prominent forensic psychiatrist and professor at the University of Pittsburgh], questioned the utility of making dangerousness determinations at all, because such decisions at any one time are likely to be highly unreliable and invalid. . . . Mental health professionals in general have not been shown to be better than anyone else in making predictions about behavior which might occur in the distant future under changing conditions.”

None of this evidence impairs the professional standing of psychiatry as an ethical and scientific medical discipline. The psychiatric enterprise is so deeply rooted in social control and so strongly supported by pseudoscientific magic and prejudice that psychiatrists must either cling to and justify the coercive services they render or repudiate and abolish their profession as they and we know it.

The natural thought of a public choice economist is, “So what else would you expect?” Big government is no more likely to be the answer to crime than to any other problem. Private-sector solutions and market-driven reforms are more likely to work. The root solution for crime is a set of institutions that get incentives right. Custom and law must internalize (privatize) more benefits for crime suppressors and make crime producers pay more of the costs they impose on victims.

Bruce Benson, professor of economics at Florida State University, pursues this logic brilliantly. Benson is a veteran researcher on crime and law, and in this volume he integrates a sprawling literature in a way that changes the whole discussion. The book works on two distinct levels. First, it provides nearly encyclopedic coverage of private techniques in criminal justice that range from medieval Anglo-Saxon days to contracting out of prisons today. Second, and more important, it elevates us to a high philosophical plane by redirecting our attention from social-engineering goals like deterrence and rehabilitation toward a focus on justice and individual rights and responsibilities.

Like education, criminology has long been a field rent by fads. Lacking a real intellectual anchor and populated primarily by sociologists, criminology has for the most part ignored a rights-based perspective. Benson’s book fills that void. His premise is that justice for victims should be the goal of our justice system. All else follows from that premise.

Offenses thought of as crimes today, like murder and robbery, were once treated as private torts, with economic compensation as the primary remedy. This private system of justice worked well and could do so again, according to Benson. With the prospect of recovery of damages, the victim had a greater incentive to report a crime, correcting a major failing in our present system where victims only report about 40 percent of crimes to the police. Restitution rights were transferable, thereby promoting efficiency in apprehension and liability.

Our present reliance on the state to protect our property rights and control criminals is very recent, less than two centuries old in most respects. The historical reason for this evolution was that kings took away victims’ property rights to restitution, and the path of criminal justice in England then wandered away from individualism toward collectivism. In the tradition of Ronald Coase and Steven Cheung, who debunked the theories that private markets must fail to supply lighthouses or pollinate fruit, Benson’s historical research explodes the doctrine that a justice system is a “public good” that only government can provide.

Perhaps Benson’s most arresting evidence comes from Japan, which has the lowest crime rate among industrialized nations by far. A primary reason, claims Benson, is that their system is more privatized and victim-oriented than ours. There, the fundamental right is for the victim to be restored to his original condition. In contrast to our culture, in the Japanese culture there is no acceptable excuse for criminal activity. The criminal must bargain for forgiveness with the victim and if the wrongdoer negotiates an acceptable settlement package and shows contrition, public-sector punishment is lenient.

Benson documents the substantial private effort to combat crime in the United States, estimated at $300 billion a year, and therefore larger than the public-sector effort. This will continue to grow rapidly, Benson predicts, if only to compensate for continuing public failure. Our system is also moving toward victims’ rights, recently enshrined in many state statutes and constitutions. Benson sees these as largely illusory gains because law-enforcement bureaucracies have co-opted victims’ rights organizations. He warns victims’ groups that they must forge an independent path in order to transform criminals’ “debts to society” into private, transferable debts to individual victims.

Shortcomings in the book are few and usually amount to legitimate differences of judgment or opinion. Benson sometimes fails to use the latest data available, and ignores the best estimates, say, for the probability of prosecution on arrest. Sometimes he attributes facts like exclusionary rules to the statist nature of the justice system too quickly, ignoring competing hypotheses like rent-seeking by lawyers.

Clearly, the crime solution lies in more individual responsibility and less public responsibility. Benson’s daring conclusion—privatize both the demand for and the supply of criminal justice services—leaves us with a wealth of provocative diagnoses and examples for further research. Benson has given us a breakthrough book.
Morgan Reynolds is professor of economics at Texas A&M University.