Criminal Justice

Today, most Americans tend to think of the law as a list of things the government prohibits. But the law envisioned by America’s founders was very much the opposite. It has roots in the ideas of Justice William Blackstone, a revolutionary English thinker whose Commentaries on the Laws of England significantly influenced early Americans’ understanding of the proper relationship between citizens and the state. Like Blackstone, America’s Founders viewed the law as a shield against government oppression. Among other things, the law provided that before the government could do significant harm to a citizen, it had to prove its case to the satisfaction of a unanimous jury drawn from the local community. Thus, the requirement of a jury trial, supplemented with abundant procedural protections for the accused, severely constrained the government’s ability to use criminal law as a cudgel to enforce compliance with arbitrary diktats—or as a tool of retribution, as the English monarchs had so often done.

Blackstone’s thinking is often contrasted with that of his contemporary, Jeremy Bentham. Bentham was a utilitarian philosopher who saw the law as a tool for promoting the greater good of society, and he viewed the rights articulated by Blackstone as unwelcome obstacles to government-​driven progress; indeed, he famously described the idea that individuals possess natural rights as “rhetorical nonsense—nonsense upon stilts.” Bentham’s thinking has been criticized as taking for granted the ways in which the development of individual liberties inhibited government tyranny and helped create the foundation upon which Bentham’s rose-​tinted view of government power could be constructed.

As natural skeptics of government power, libertarian scholars seek to rehabilitate the Blackstonian conception of the law as an institution that protects individual rights and limits the government’s power to use the criminal code as a tool of oppression. While most libertarians recognize a legitimate role for government in protecting people from the illegitimate use of force or fraud by others, they understand how easily that power can be abused and how important it is to constrain the exercise of that power with robust constitutional protections. As for what conduct the government may legitimately prohibit, most libertarians favor some version of the principle that a person may act as they wish so long as they do not interfere with others’ equal freedom.

Though their thinking arises from the same core set of philosophical beliefs, there is significant disagreement among libertarians about the proper role of government in regulating behavior, adjudicating alleged transgressions, and administering appropriate punishments.

Libertarian anarchists tend to see no legitimate role for the state in criminal justice. They argue that private security forces and dispute-​resolution mechanisms would better respect individual rights and more effectively serve the public interest. Advocates of a minimal state, sometimes referred to as libertarian “minarchists,” generally grant the legitimacy of a government-​administered police force and court system empowered to investigate, prosecute, and punish rights-​violating conduct. Minarchists reluctantly grant that a state monopoly on the administration of criminal justice is a necessary evil for sufficiently protecting each person’s right to noninterference by others.

Some libertarians believe that the appropriate response to transgressions against others is restitution rather than retribution—that is, the payment of civil damages by the perpetrator to the victim in a tort proceeding. But experience suggests that those most likely to commit rights violations will be least able to satisfy monetary judgments, and there are some crimes, such as homicide, for which financial compensation seems a nonsensical response. Perhaps unsurprisingly, the pure restitution approach to criminal justice has not attracted a broad following. Other libertarians embrace the principle of retributive justice, which holds that those who harm others are morally deserving of punishment. Many libertarians believe that criminal justice ought to involve elements of both restitution and retribution.

Most modern libertarians embrace a more pragmatic approach to criminal justice, eschewing an entirely coherent theory of prohibition and punishment. These mainstream libertarians tend to accept the state as the arbiter of justice and focus more on discrete policies like ending drug prohibition than on overarching theories of criminal justice. But mainstream libertarians have significant disagreements with the current system, which allows democratic majorities to outlaw conduct on a whim, embraces a policy of near-​zero accountability for members of law enforcement, and turns a blind eye to the coercion-​fueled system of mass adjudication that we refer to euphemistically as “plea bargaining.”

Unfortunately, while the concepts of “unalienable rights” and a liberty-​centric legal code manifested in the Declaration of Independence and Constitution respectively aligns with Blackstone, America’s modern criminal justice system has far more in common with Bentham’s government-​empowering conception of law, both in terms of substance and procedure. As to substance, the U.S. Supreme Court has mistakenly held that in general the government need not articulate—nor even have—any particularly good reason for restricting people’s freedom and may, apart from a small handful of rights the Court deems “fundamental,” criminalize just about anything it chooses.

Equally if not more concerning, the courts have allowed—indeed abetted—the near-​total elimination of the Constitution’s single most important liberty-​protecting procedure, which is the right to a jury trial in criminal cases. Among other things, jury trials ensure that before someone may be convicted of a crime and incarcerated, the government have the endorsement of the community, in the form of a unanimous jury verdict, that it would be just to do so. Unfortunately, with the active complicity of the judiciary, prosecutors have developed a nearly infallible technique for inducing criminal defendants to waive their constitutionally guaranteed right to a jury trial and simply condemn themselves instead by pleading guilty. As noted, we call this process “plea bargaining,” but it is nothing of the sort. More than 95 percent of criminal convictions today are obtained through guilty pleas, and the only plausible explanation for that sky-​high figure is coercion of defendants by means of pretrial detention, charge-​stacking, mandatory minimums, and the infamous “trial penalty.” The trial penalty imposes upon people who exercise their right to trial a prison sentence orders of magnitude more severe than the punishment they would have received had they instead pled guilty and spared the government the expense, inconvenience, and risk of a jury trial. This plea-​driven system of mass adjudication, even more so than overcriminalization, has been the true engine of mass incarceration.

To make matters worse, the twin evils of overcriminalization and mass adjudication via coercive plea bargaining operate in an environment of near-​zero accountability for police and prosecutors, who receive qualified and absolute immunity from civil lawsuits, respectively, by virtue of judicially confected legal doctrines with no basis in law, history, or common sense. Qualified immunity has proven especially pernicious in that it requires would-​be civil rights plaintiffs who plausibly allege misconduct by police officers to demonstrate that the particular right at issue was “clearly established” in that it had already been ruled improper by a court in a case with nearly identical facts. Neither surprisingly nor coincidentally, qualified immunity has proven to be a major hurdle for people seeking to hold police accountable for common rights-​violations such as excessive force and unlawful seizures, and the result has been a proliferation of police misconduct and public resentment.

This assembly-​line style of justice is quintessentially Benthamian: it turns the law into a tool for conviction, judges its efficacy on the volume of convictions it generates, and operates entirely outside the procedural protections that arose from a philosophy treating law as the protector of liberty. Libertarians recognize that it would be impossible for the government to operate this machinery if even a fraction of the liberties intended in the Constitution were restored to full force, and that a more just society, where the law stands between individual liberty and government oppression, would force police and prosecutors to focus their efforts on bringing in dangerous criminals instead of people with expired vehicle tags. Foremost amongst libertarian priorities to restore this vision of the law are the resurrection of jury trial as the default mechanism for adjudicating criminal charges and the elimination of judicially invented immunity doctrines that shield rights-​violating government officials from accountability for the harms they inflict.