The Tyranny of Government Courts and Prisons

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from For
a New Liberty

labor permeates our legal and judicial structure. Thus, much-venerated
judicial procedure rests upon coerced testimony. Since
it is axiomatic to libertarianism that all coercion – in
this case, all coerced labor – against everyone except convicted
criminals be eliminated, this means that compulsory testimony
must be abolished as well. In recent years, it is true, the courts
have been alive to the Fifth Amendment protection that no alleged
criminal be forced to testify against himself – to provide
the material for his own conviction. The legislatures have been
significantly weakening this protection by passing immunity laws,
offering immunity from prosecution if someone will testify against
his fellows – and, furthermore, compelling the witness to
accept the offer and testify against his associates. But compelling
testimony from anyone for any reason is forced labor – and,
furthermore, is akin to kidnapping, since the person is forced
to appear at the hearing or trial and is then forced to perform
the labor of giving testimony. The problem is not only the recent
immunity laws; the problem is to eliminate all coerced
testimony, including the universal subpoenaing of witnesses to
a crime, and then forcing them to testify. In the case of witnesses,
there is no question whatever of their being guilty of a crime,
so the use of compulsion against them – a use that no one
has questioned until now – has even less justification than
compelling testimony from accused criminals.

In fact,
the entire power to subpoena should be abolished, because the
subpoena power compels attendance at a trial. Even the accused
criminal or tortfeasor should not be forced to attend his own
trial, since he has not yet been convicted. If he is indeed –
according to the excellent and libertarian principle of Anglo-Saxon
law – innocent until proven guilty, then the courts have
no right to compel the defendant to attend his trial. For remember,
the only exemption to the Thirteenth Amendment’s prohibition
of involuntary servitude is "except as a punishment for crime
whereof the party shall have been duly convicted." An accused
party has not yet been convicted. The most the court should be
able to do, then, is to notify the defendant that he is going
to be tried, and invite him or his lawyer to attend; otherwise,
if they choose not to, the trial will proceed in absentia.
Then, of course, the defendant will not enjoy the best presentation
of his case.

Both the
Thirteenth Amendment and the libertarian creed make the exception
for the convicted criminal. The libertarian believes that a criminal
loses his rights to the extent that he has aggressed upon the
rights of another, and therefore that it is permissible to incarcerate
the convicted criminal and subject him to involuntary servitude
to that degree. In the libertarian world, however, the purpose
of imprisonment and punishment will undoubtedly be different;
there will be no "district attorney" who presumes to
try a case on behalf of a nonexistent "society," and
then punishes the criminal on "society’s" behalf. In
that world the prosecutor will always represent the individual
victim, and punishment will be exacted to redound to the benefit
of that victim. Thus, a crucial focus of punishment will be to
force the criminal to repay – make restitution to –
the victim. One such model was a practice in colonial America.
Instead of incarcerating, say, a man who had robbed a farmer in
the district, the criminal was coercively indentured out to the
farmer – in effect, "enslaved" for a term –
there to work for the farmer until his debt was repaid. Indeed,
during the Middle Ages, restitution to the victim was the dominant
concept of punishment. Only as the State grew more powerful did
the governmental authorities – the kings and the barons –
encroach more and more into the compensation process, increasingly
confiscating more of the criminal’s property for themselves and
neglecting the hapless victim. And as the emphasis shifted from
restitution to punishment for abstract crimes "committed
against the State," the punishments exacted by the State
upon the wrongdoer became more severe.

As Professor
Schafer writes, "As the state monopolized the institution
of punishment, so the rights of the injured were slowly separated
from penal law." Or, in the words of the turn-of-the-century
criminologist William Tallack,

It was
chiefly owing to the violent greed of feudal barons and medieval
ecclesiastical powers that the rights of the injured party were
gradually infringed upon, and finally, to a large extent, appropriated
by these authorities, who exacted a double vengeance, indeed,
upon the offender, by forfeiting his property to themselves
instead of to his victim, and then punishing him by the dungeon,
the torture, the stake or the gibbet. But the original victim
of wrong was practically ignored.[1]

At any rate,
while the libertarian does not object to prisons per se,
he does balk at several practices common to the present judicial
and penal system. One is the lengthy jail term imposed upon the
defendant while awaiting trial. The constitutional right to a
"speedy trial" is not arbitrary but a way of minimizing
the length of involuntary servitude before conviction for
a crime. In fact, except in those cases where the criminal has
been caught red-handed and where a certain presumption of guilt
therefore exists, it is impossible to justify any imprisonment
before conviction, let alone before trial. And even when someone
is caught red-handed, there is an important reform that needs
to be instituted to keep the system honest: subjecting the police
and the other authorities to the same law as everyone else. As
will be discussed further below, if everyone is supposed to be
subject to the same criminal law, then exempting the authorities
from that law gives them a legal license to commit continual aggression.
The policeman who apprehends a criminal and arrests him, and the
judicial and penal authorities who incarcerate him before trial
and conviction – all should be subject to the universal law.
In short, if they have committed an error and the defendant turns
out to be innocent, then these authorities should be subjected
to the same penalties as anyone else who kidnaps and incarcerates
an innocent man. Immunity in pursuit of their trade should no
more serve as an excuse than Lieutenant Calley was excused for
committing atrocities at My Lai in the course of the Vietnam war.[2]

The granting
of bail is a halfhearted attempt to ease the problem of
incarceration before trial, but it is clear that the practice
of bail discriminates against the poor. The discrimination persists
even though the rise of the business of bail-bonding has permitted
many more people to raise bail. The rebuttal that the courts are
clogged with cases and therefore cannot grant a speedy trial is,
of course, no defense of the system; on the contrary, this built-in
inefficiency is an excellent argument for the abolition of government

the setting of bail is arbitrarily in the hands of the judge,
who has excessive and little-checked power to incarcerate people
before they are convicted. This is particularly menacing in the
case of citations for contempt of court, because judges
have almost unlimited power to slap someone into prison, after
the judge himself has acted as a one-man prosecutor, judge, and
jury in accusing, "convicting," and sentencing the culprit
completely free from the ordinary rules of evidence and trial,
and in violation of the fundamental legal principle of not being
a judge in one’s own case.

there is another cornerstone of the judicial system which has
unaccountably gone unchallenged, even by libertarians, for far
too long. This is compulsory jury service. There is little
difference in kind, though obviously a great difference in degree,
between compulsory jury duty and conscription: both are enslavement,
both compel the individual to perform tasks on the State’s behalf
and at the State’s bidding. And both are a function of pay at
slave wages. Just as the shortage of voluntary enlistees in the
army is a function of a pay scale far below the market wage, so
the abysmally low pay for jury service insures that, even if jury
"enlistments" were possible, not many would be forthcoming.
Furthermore, not only are jurors coerced into attending and serving
on juries, but sometimes they are locked behind closed doors for
many weeks, and prohibited from reading newspapers. What is this
but prison and involuntary servitude for noncriminals?

It will be
objected that jury service is a highly important civic function,
and insures a fair trial which a defendant may not obtain from
the judge, especially since the judge is part of the State system
and therefore liable to be partial to the prosecutor’s case. Very
true, but precisely because the service is so vital, it is particularly
important that it be performed by people who do it gladly, and
voluntarily. Have we forgotten that free labor is happier and
more efficient than slave labor? The abolition of jury-slavery
should be a vital plank in any libertarian platform. The judges
are not conscripted; neither are the opposing lawyers; and neither
should the jurors be.

It is perhaps
not a coincidence that, throughout the United States, lawyers
are everywhere exempt from jury service. Since it is almost always
lawyers who write the laws, can we detect class legislation and
class privilege at work?


Stephen Schafer, Restitution
to Victims of Crime
(Chicago: Quadrangle Books, 1960),
pp. 7–8; William Tallack, Reparation
to the Injured and the Rights of the Victims of Crime to Compensation

(London, 1900), pp. 11–12.

For a hilarious critique of the immunities of the arresting and
penal authorities, see H.L. Mencken, "The Nature of Liberty,"
A Selection
(New York: Vintage Books, 1958), pp. 138–43.


N. Rothbard
(1926–1995) was dean of the Austrian
School, founder of modern libertarianism, and chief academic
officer of the Mises Institute.
He was also editor — with Lew Rockwell — of The
Rothbard-Rockwell Report
, and appointed Lew as his
literary executor. See
his books.

Best of Murray Rothbard

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