My current state of extreme annoyance at the behavior of the police is motivating me to come closer to a radical libertarian/anarchist position on this issue than I’ve ever found myself before. Once the fury dies down, some “cold light of reason” thinking has convinced me that there might be some potential in the whole “separation of police and state” idea.
The libertarians will not, however, have me without some struggle, for I think the precondition for this sort of idea working is serious income redistribution. But, well, you take what you can get.
SO what do I mean by abolishing the police? Primarily, I’m talking about privatizing the day-to-day business of having guys with guns roaming around catching criminals. I don’t think we need to go so far as to abolish the use of state force in the administration of the law enforcement system (state jails, state physical security for courts — or for that matter state courts), nor do I think there’s any hope for abolishing the state’s controlling enough force to enforce its own legitimate interests, like taxation — someone’s gotta make people pay for all the income redistribution I think is necessary for all of this.
To start, why would we want to do this? What harms are the state-run police doing to us? Well, I think the answer is somewhat obvious. While the state-run police provide a necessary service, they have also been a disaster in at least two major respects.
First, they abuse their power like fuck — there is an endless supply of corrupt cops, violent cops, racist cops — there’s a sickness at the heart of the way being a cop is instantiated in this society, and I think it’s related to the power that comes with being the agent of the state’s monopoly of force — that these are the people who our society has given the power to basically mete out unrestrained violence against their fellow-citizens. That kind of power attracts the wrong sorts of people, and warps the right sorts of people. However, it’s less than clear that this problem would go away if policing were privatized (see later in this post).
Second, having the police around as a tool for enforcing whatever stupid whim the legislature has seems to lead to terrible public policy and an intrusive form of day-to-day governance. Consider the disasters of the war on drugs, or other victimless crimes like prostitution. If there weren’t a ready-made police force — if the legislature had to create (and fund) a separate agency to enforce those laws, because private citizens wouldn’t enforce them on their own, would they be so ready to do so? Or would they think twice? The abolition of the police might be a great way to get some architectural (in Lessigian speek) teeth into the harm principle, by making it hard for legislators to justify laws that couldn’t be enforced by aggrieved citizens. Moreover, the existence of the police skews the incentives for enforcement in some ways — even if we think that some anti-drug laws should be enforced, it’s plausible to think that they are over-enforced because a) there are people whose jobs are to do nothing but enforce them, and b) there are financial and other incentives like asset forfeiture laws to encourage their enforcement.
So imagine that local police departments ended tomorrow — the doors were shuttered, the arrest authority was taken away, the guns and badges were melted down into shiny commemorative coins. What problems would we have to solve? They seem to obviously fall into two basic categories: 1) lack of service delivery, and 2) abuse of power without the checks of the state. Let’s consider them in order.
How do Private Cops Deliver Services?
First, let’s get one silly idea out of the way now. Police services are not a public good in the strongest sense, in the same way military protection is. Many police services are excludible: it’s perfectly possible for you to call the cops and say “I just got burglarized” and for the cops to say “fuck off, you haven’t paid us this week.” Even the general deterrence function of the police is excludible. Consider the signs on houses saying that they’re clients of armed-response private security agencies — that’s an example of excludible deterence. Also, police services are rivalrous, as anyone who has ever tried to get through on a 911 call knows: my consumption of N pig-hours of police services is consumption that you can’t have.
The real question here, of course, is how private cops deliver services to the poor. The rich can afford cops. There’s a secondary question here which is how private cops deliver services to those with special needs — to the disabled, to people who live in bad neighborhoods. As a large healthy male who knows martial arts and lives in a town with a high median income, I’m not exactly criminal-bait.
Let’s separate three kinds of function for the police. Call them the deterrence function, the immediate protection function, and the investigation function.
The investigation function seems easiest to privatize without losing service delivery: people can buy crime insurance from private agencies, which entitles them to police investigation services should they become a victim of a crime. Those services could compete on price and quality of investigation, and could turn evidence over to state prosecutors as well as citizens, who would decide together or separately whether to bring a prosecution for the crime. (I like the idea of citizens bringing their own prosecution as well as handling their own law enforcement, but that would require more institutional innovations than I want to think about right now.) The poor and vulnerable could receive heavy subsidies for the purchase of police insurance, which would be funded by progressive taxation — but would probably be cheaper than the current tax for the cops, given that market forces would be keeping prices down.
The immediate protection function could also be privatized, but it might be a bit more difficult — presumably, there are economies of scale in police protection being provided to entire communities (hence Nozick’s dominant protection agencies). And if you have a whole neighborhood going in on a private police force, don’t you basically have a police department? After all, it’s a natural monopoly, so we can’t rely on the notion that markets will keep private cops from acting like public cops on a neighborhood-by-neighborhood basis.
But I’m not so sure. Nozick’s dominant protection agencies exist in a world without legislatures, and, in effect, they sort of grow into the legislatures (he’s not really clear on how this happens, but we might think of a slightly prettied up version of Mancur Olson’s stationary bandits). On the other hand, privatized neighborhood protection agencies would exist in a world with legislatures, and, crucially, separate from them and outside of their direct control. It would be importantly different groups of people making the laws and enforcing them, and that might bring some of the benefits of privatization even in a natural monopoly industry, e.g., from there being no inventive for anyone to enforce laws against victimless crimes.
Again, of course, wealth would need to be transferred, particularly to poorer and more crime-ridden neighborhoods. But those neighborhoods could hire their own police agencies this time, and fire them if they’re, for example, racist. Imagine if the residents of Watts or the Bronx got to pay for their own cops without having to put up with what the rest of LA or NYC wanted? They’d probably create a nice demand for non-racist cops. That is, it’s important that this allows us to disaggregate police forces from political subdivisions — the people of the rich part of town might demand very different kinds of policing from the people of the poor part of town, and, so long as all can afford the policing they need (again, lots of redistribution needs to happen here, sorry libertarian friends), this seems like a great step forward.
Importantly, the investigation and the immediate protection function can be separated in private cops. There might be neighborhood monopolies of armed response agencies, but individuals would still choose their own investigation agencies. There’s no obvious reason those two functions should to go together. You need a thug for one and an analyst for the other. (I suppose one sometimes needs thugs for the other, too, but thugs come cheap.)
The deterrence function is just a combination of the other two functions — cops deter criminals because they might get shot in the act or arrested afterward, so if those functions are being provided, so is deterrence.
How are Private Cops Prevented from Abusing Their Power?
Here’s the broad idea. The state can apply political controls wherever it wants. Whatever checks currently exist against abuse of power from public cops will also exist for private cops, if we do it. We can apply open records laws to private police agencies. We can make private police agencies liable for constitutional violations under 42 U.S.C. 1983. We can subject private police agencies to the tender mercies of state inspectorates. We can have a licensing scheme in order to give private cops access to tools like search warrants and concealed carry, and take those licenses away if they abuse the power. Those legal tools are available. In many cases, we’ve failed to use them when we’ve privatized things — consider the scandal of private prisons. However, they are available, and we can use them.
In addition, however, market controls are available to check private police abuses. As noted above, black communities need no longer rely on the voters of the larger white community in which they reside to get non-racist cops — they can simply withdraw from the contract with their racist department and take bids from non-racist departments. Communities who don’t give a fuck about some kinds of crime (particularly the victimless ones) can buy cops who don’t enforce them (and cheaper too, no doubt), while communities who do want to keep hookers off the streets can, assuming the legislature has agreed that it’s a good idea to make it illegal, pay extra to have those laws enforced. The point here is that there will now be multiple control methods — people will have all the political controls available to them, so they’ll be able to vote to keep the cops in check just as before, but they’ll also have all the market controls available. Surely, this implies better-controlled cops.
The only risk here is that market forces might lead to perverse incentives — private police departments whose profits depend on their being able to show reduced crime statistics might engage in secret brutality, for example, to bring those statistics down. But how much of a risk is that, relative to current incentives? Remember when Rudy Guiliani got elected mayor of New York, and how many people the NYPD brutalized under his reign? Political incentives have just the same perverse effect as market incentives in getting cops to do wicked things in order to bring down crime. I see no reason to believe that money rather than votes would change matters.
I conclude that privatizing the police is an idea that’s worth exploring.