Justice

“Justice is the elimination of injustice. Injustice is a crime to which no recourse exists, that is a crime for which there has been no restitution of property.”—Andrew J. Galambos ¹

 “The law perverted! And the police powers of the state perverted along with it! The law, I say, not only turned from its proper purpose but made to follow an entirely contrary purpose! The law becomes the weapon of every kind of greed! Instead of checking crime, the law itself guilty of the evils it is supposed to punish!  If this is true, it is a serious fact, and moral duty requires me to call the attention of my fellow citizens to it.”—Frédéric Bastiat ²

The great libertarian economist Ludwig von Mises stated as a fundamental rule of human action that

“The essential task of government is defense of the social system not only against domestic gangsters but also against external foes . . . The maintenance of a government apparatus of courts, police officers, prisons, and of armed forces requires considerable expenditure. To levy taxes for these purposes is fully compatible with the freedom the individual enjoys in a free market economy.” ³

Nothing could be further from the truth.

In 1934, already 53 years of age and well established in his native Austria, Mises moved to Switzerland—out of fear that Austrian Nazis would take over the state, which happened in 1938. With Nazi rule, the police are gangsters ruled by gangster bosses. In 1940 Mises and his wife left Switzerland to emigrate to the United States when Nazi Germany’s dictator, Adolf Hitler, was threatening the annexation of German-speaking Switzerland to incorporate it into Germany.

Except for the statement quoted above, about the necessity of courts, police, prisons, and armed forces,  in all of Mises’ writings he advocated the maximum freedom of action for individuals as the only way to achieve the greatest productivity and hence the greatest prosperity for all. ⁴

Throughout six decades of study, pondering, teaching, and writing, Ludwig von Mises  directed his great intellect and energy to the noble purpose of maximizing the freedom of individuals by showing the follies and evil consequences of collectivist thinking and the concomitant state intervention in economic life.

However, Mises wrote despondently in 1940 that “. . . my theories merely explain the decline of a great civilization; they did not prevent it. I set out to be a reformer, but only became the historian of decline.” ⁵

With the concession that the state was indispensable for maintenance of order against the depredations of “gangsters and external foes,” the door is opened wide to state economic intervention in free markets that Mises deplored. For once a strong, centralized state is established for the limited purpose of defense against internal and external aggression, the quest for human freedom is frustrated as long as the state survives. A strong, centralized, but limited state–that is “limited government” in contemporary libertarian parlance–will not remain limited. There will be political pressure for the state to take action for the “general welfare.”  Then, over time, the state will expand its activities to the point where it becomes a suffocating burden on the people, a parasite that consumes its host.

A NOTE ON TERMINOLOGY

In this chapter, and elsewhere in this book, CTLR uses the word “state” to refer to what is commonly considered “government.” In the lexicon of CTLR, the state is a political organization that finances its operations through coercion, including compulsory payments called taxes, and compulsory service, as in military service and jury duty.

CTLR sometimes uses the word “government” to refer to the state, but does so only in the interest of communication with readers for most of whom the word can only mean politically selected and empowered institutions including but not limited to legislatures, police, prosecutors, judges, and prisons.

In the context of this chapter’s description of free enterprise justice, the word “government” is used herein as it is defined in CTLR: “Any person or organization that sells products or services to protect property, to which the owner of the property may voluntarily subscribe.” Examples of such government services include:

• Insurance and the insurance industry;
• Proprietary security and the security industry instead of police;
• Proprietary mediation and arbitration instead of state courts.

In previously well-established general usage, proprietary security and proprietary mediation and arbitration are referred to as private security and private courts. Proprietary security, mediation and arbitration are private only in that they are owned and operated by individuals or by companies rather than by the state. Their services are offered to the public. In that sense they are public security companies and public dispute resolution services.

FOCUS ON THE UNITED STATES

The focus of this chapter is justice and injustice in the United States of America, and only on the U.S. In terms of protecting life and property, state justice is probably no better in other nations, and in many it is worse, that is more unjust, than in the United States.

Regretfully, it has seemed necessary and appropriate to examine a few of the all too frequent instances of police misconduct and even murder in the United States, a phenomenon not even considered in the initial planning for this chapter. However, events required notice of police abuse of their authority and the laws which clothe police with the mantle of law enforcement. There was no search made for especially outrageous cases. There is scarcely a week without such a report in the news media. Over a span of three days the Los Angeles Times published reports with the following headlines. “3 San Bernardino County deputies charged in televised beating,” and “3 Santa Clara County deputies arrested in mentally ill inmate’s beating death.” ⁶

SOURCE NOTES

The numerous incidents of injustice mentioned in this chapter were not gathered by means of a deliberate search, but rather from observing reports of noteworthy events appearing in regular reading of news media, including but not limited to the Los Angeles Times, The New York Times, and the Washington Post; websites of the Institute for Justice, the Independent Institute, and Reason.com; and study of books relevant to justice including, but not limited to the several books cited in the end notes.

REALISTIC HOPE FOR A BETTER FUTURE

Just as important as understanding the source of perennial injustice in contemporary human society is the recognition that the evolution of human culture provides a realistic hope that eventually humanity will transcend the primitive legal rules and practices of the contemporary era. Stripped of all disguise, the legal rules governing humanity at present amount to nothing more than the primitive concept that might makes right. ⁷

NATURAL LAW, CUSTOMARY LAW, AND POSITIVE LAW

The idea of Justice, in common understanding, requires laws governing human conduct. There are three concepts of law and justice for human beings, Natural Law, Customary Law, and Positive Law. Distinguishing between these concepts is of vital importance to an understanding of justice and injustice in human affairs.

Natural Law

The term Natural Law refers to the idea that ultimately the governance of human beings rests on the laws of nature and on human nature itself. In this understanding of the term, any rule for human conduct is counterproductive and ultimately will be overthrown if it commands people to behave contrary to laws of nature and contrary to human nature itself. Three examples below must suffice.

It is this sense of the law—the laws of nature and of human nature itself—that animates  the statement of Frédéric Bastiat (1801-1850) that appears at the top of the first page of this chapter. In the words of Professor Thomas J. Di Lorenzo, “Bastiat was a French economist, legislator, and writer who championed private property, free markets, and limited government. Perhaps the main underlying theme of Bastiat’s writings was that the free market was inherently a source of ‘economic harmony’ among individuals, as long as government was restricted to the function of protecting the lives, liberties, and property of citizens from theft or aggression.” ⁸

Bastiat provided a pellucid and definitive statement of the concept of Natural Law, as follows:

“Law is the collective organization of the individual right to lawful defense. Each of us has a natural right—from God—to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two . . .

“If every person has the right to defend—even by force—his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. . . Since an individual cannot lawfully use force against the person, liberty, or property, of another individual, then the common force—for the same reason—cannot lawfully be used to destroy the person, liberty, or property of another. . .

“The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all.” ⁹

Church law and natural law

At one time the Roman Catholic church held that God had created the earth as the center of the universe. The church forbade expression of a contrary opinion. That commandment of the church was the law for all persons within the power of the church to punish. That law was enforced by violence. Nicolaus Copernicus (1473-1543) waited until he was virtually on his deathbed before publishing a contrary opinion in his book On the Revolutions of the Celestial Spheres—that the sun, not the earth, was the center of the solar system, that the earth revolved around the sun and also revolved daily on its own axis. ¹⁰ What is known of the life of Copernicus indicates that he had completed his magnum opus many years before publication but delayed publication until he was near death rather than face persecution for heresy by the Roman Catholic Inquisition. ¹¹

Giordano Bruno (1548-1600) wrote that the sun was just one of many stars in the universe, thereby assigning to the earth even less cosmological significance than had the Copernican theory. The church condemned Bruno for this and burned him alive at the stake after he refused to recant. According to noted contemporary English astronomer Sir Fred Hoyle (1915-2000), “Bruno suggested that [stars] were bodies like the Sun and were hence at enormous distances away from us. He extended this concept to infinity, suggesting that space might be infinite, and that the universe might be eternal, without beginning and without end. Such remarkably modern ideas led him to the stake . . . His final remark at his trial was ‘I await your sentence with less fear than you pass it. The time will come when all will see as I see.’ The time has come indeed . . .” [Emphasis added] ¹²

In 1610, Galileo Galilei (1564-1642) defied the church by publishing his argument ridiculing the idea of an earth-centered universe and asserting the superiority of the explanation of the solar system provided by Copernicus. ¹³ Galileo’s essay spoke of the Copernican system as a fact, which the church held contradicted both the bible and the Church’s dogma that heavenly bodies were perfect and unchanging as had been asserted by Aristotle and Ptolemy in ancient Greece.  ¹⁴

In 1632 Galileo was summoned to Rome for trial by the Inquisition, and in 1633 he was convicted of heresy. The church extorted a recantation from Galileo by threatening him with torture and death. When Galileo recanted, the church sentenced him to house arrest for the rest of his life.

The law of the church about the earth and the sun was in violation of higher law, the laws of nature. The law of the church had to yield to the laws of nature.

Thomas Paine observed in his essay Common Sense (1776) that time makes more converts than reason. He was right. Time falsified the church’s law forbidding advocacy of contrary opinion about the earth and the sun. The accumulation of scientific evidence eventually compelled the church to exonerate Galileo, but that did not happen until 359 years after he was convicted of heresy. Even as the Catholic Pope exonerated Galileo he nevertheless defended the inquisitors who persecuted Galileo. ¹⁵ The Catholic doctrine that the Pope is infallible virtually compelled  the Pope in 1992 to insist that his predecessor 359 years earlier was not wrong in resisting all efforts to have Galileo pardoned. ¹⁶

Giordano Bruno’s cosmology has long since been validated by astronomical observation every bit as fully as the observational validation of the cosmology of Copernicus and Galileo. However, the church has not exonerated Bruno of heresy, much less expressed regret for persecuting him for seven years and putting him to death in a most horrible way.

The natural laws of life and political laws

It is a biological law of nature that human beings, in common with all forms of life, are driven by the biological imperative to live, to survive threats to life, and to reproduce their own kind. Therefore, the law in China that currently forbids a woman to have more than one child is a law that cannot withstand the test of time. As of the second decade of the 21^st century that law had begun already to erode in China.

Human nature and political laws

It is a law of human nature that all humans seek to acquire property. That statement is not invalidated by the undoubted truth that some humans cherish the higher things in life–intellectual and artistic endeavors–more than material possessions. With property defined to include the higher things in life, as Galambos did, ¹⁷ it is human nature to want to acquire and possess property.

Karl Marx and Friedrich Engels said in their Communist Manifesto of 1848 that “the theory of the Communist may be summed up in the single sentence: Abolition of private property.” ¹⁸ That was not a theory, in scientific terms, but rather a principle by which Marx and Engels thought human society should and could be governed. They were wrong. That principle violates human nature. The attempt to abolish private property completely was an immediate failure in Russia in 1918. The attempt to abolish it in part without destroying society immediately was what occurred in communist Russia over the years from 1918 to 1991. That attempt, too, failed. It devastated Russian society over a period of years, rather than immediately.

Customary law

The phrase Customary Law refers to rules for human conduct developed by human societies through custom, usage and tradition. Anthropology and history inform us that Customary Law was the law of all humanity until the advent of centralized rule by a political entity—a monarch, oligarchy, dictatorship, or the political elite in a political democracy.

Positive law

The term Positive Law means the laws established by legislation of a centralized political authority, including judge-made law, for judges make law in their decisions. Much of this book constitutes analysis and criticism of positive law as it exists in the United States of America and elsewhere as well.

In the concept of Justice in this chapter, the term “Positive Law” is a paradoxical misnomer. How can law be anything but negative, rather than positive, if it is an instrument of injustice? In example after example this chapter shows great injustices being perpetrated pursuant to positive law, i.e., in the name of the laws of the United States and its constituent individual states.

INJUSTICE IN THE CONSTITUTION OF THE UNITED STATES OF AMERICA

Other than murder, there is no greater interference with the property of human beings than to enslave them and deprive them of freedom for the entirety of their lives. That was chattel slavery of human beings in America for nearly 250 years, starting with the time of the first importation of Africans as slaves in the new British colonies in North America around 1620.

Slavery was an interference with the property of the enslaved humans to which there was no recourse under the customs and the laws of the British colonies and of the United States after it gained independence by successful secession from Great Britain.

Injustice in America was built into the Constitution of the United States by its treatment of slaves as the property of those who held them in slavery. Article 4, Section 2 of the Constitution required the return of runaway slaves to slave owners. Article 1, section 9 protected the slave trade for twenty years stating, in effect, that only starting January 1, 1808 could Congress prohibit importation of new slaves.

These provisions were necessary to the adoption of the Constitution as the law of all thirteen of the former colonies. Without the institutionalization of slavery by the Constitution, the legislatures of the southern states would have refused to ratify the new Constitution. Article VII of the Constitution says that the ratification of the conventions of nine states shall be sufficient for the establishment of the Constitution between the states so ratifying it. Even though most white southerners were not slaveholders, in the five southernmost of the original thirteen states and perhaps in some northern states as well, slaveholders had sufficient political power to prevent ratification if slavery was not protected in the Constitution. ¹⁹

The federal Fugitive Slave Act of 1793 enforced slavery by prohibiting any state laws giving sanctuary to escaped slaves, making it a federal crime to assist an escaped slave, and allowing slave-catchers into every U.S. state and territory.

There were notable Americans who opposed slavery and advocated its abolition, from the time of American independence up until the Civil War, including Thomas Paine (1737-1809), William Lloyd Garrison (1805-1879), Lysander Spooner (1808-1887), and Henry David Thoreau (1817-1862). Abraham Lincoln (1809-1865) was not one of them, as CTLR explains below and in the treatment of the Civil War in chapter 13.

The Dred Scott case

In the case of Dred Scott v. Sandford, decided in 1856, the Supreme Court of the United States ruled that persons whose ancestors were Negros of the African race imported into this country, and sold and held as slaves were not intended to be included under the word ‘citizens’ in the Constitution.

Dred Scott was the slave of a U.S. Army doctor, John Emerson, who took Scott with him from Missouri, a slave state, to Illinois and the Wisconsin Territories, both of which prohibited slavery. When Emerson died in 1846, Scott tried to buy freedom for himself and his family from Emerson’s widow, but she refused. Scott initiated a lawsuit to gain his freedom on the ground that he was emancipated because he had lived with Dr. Emerson in free territories before Dr. Emerson died. Scott’s case was decided on constitutional grounds by the Supreme Court of the United States.

Chief Justice Taney, writing for the majority, asserted that it was a universally agreed proposition among the men who drew up the Constitution that negro slaves “. . . for more than a century before [had] been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery . . . This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute . . .”

Therefore, Chief Justice Taney held that Plaintiff Dred Scott was not a citizen and accordingly had no right to maintain a lawsuit in the courts of the United States to establish that he was emancipated, and a free man. ²⁰

Chief Justice Taney stated what was the prevalent view of white Americans, on the eve of the Civil War, i.e., that blacks were an inferior race that should not have the civil rights accorded to whites—not citizenship, not the right to vote, not the right to be members of a jury, and not the right of free association within society. ²¹

The Civil War—not about freedom for slaves

Hostilities in the Civil War of 1861-1865 began at Fort Sumter, in the harbor of Charleston, South Carolina. Consequently, seven southern states sent a delegation to Washington, DC to negotiate a peaceful secession by means of a treaty between the United States and a Confederacy made up of those seven states. President Lincoln rejected any negotiations with the southerners because he did not want to recognize the right of secession. When President Lincoln started a mobilization of northern armed forces to quash the rebellion, his term for southern secession, four more southern states seceded, and thus began the deadliest war in American history.

President Lincoln easily could have avoided the Civil War by doing nothing to prevent secession. Doing nothing would have been consistent with American history and traditions of freedom. After all, the United States was established by secession from Great Britain.

The war also could have been avoided easily by the political leaders of the Confederacy of states that sought to secede from the United States. Those southern political leaders could have abandoned secession. It was imprudent not to have done so, considering the potential military superiority of the north with its much larger white population and its far greater industrialization.

There was strong opposition to war in the northern states and in those states along the border between north and south. Lincoln’s objective was not to free slaves, but to prevent states from seceding from the union. But for the secession of southern states in 1861, a majority in Congress would have refused to authorize war by the northern states against the southern states. By his actions in 1861 President Lincoln prevented a vote of state legislatures in Maryland, Kentucky, and Missouri on the question of secession. ²²

President Lincoln stated his objective in word and deed. In a famous public letter of 1862, during the Civil War Lincoln said:

“My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union. I have here stated my purpose according my view of my official duty; and I intend no modification of my oft-expressed personal wish that all men everywhere could be free.” ²³

Lincoln’s Emancipation Proclamation of 1862 freed slaves “. . . within any State or designated part of a State, the people whereof shall then be in rebellion against the United States . . .” Thus, slavery was to continue in the border states of Maryland, Kentucky, and Missouri which did not join the Confederacy of southern states trying to secede from the union. Not a single slave was freed by the Emancipation Proclamation. It was a war measure designed to weaken the south by encouraging slaves to flee.

An English newspaper commented that “the principle [of the proclamation] is not that a human being cannot justly own another, but that he cannot own him unless he is loyal to the United States.” ²⁴

Japanese internment in WW II: the Supreme Court approves imprisonment without guilt

After the Imperial Japanese Navy attack on the U.S. Navy at Pearl Harbor Hawaii, and the Japanese military attack on U.S. army forces in the Philippine Islands, on December 7, 1941, President Franklin D. Roosevelt issued an Executive Order ²⁵ authorizing the U.S. military to ban all persons of Japanese ancestry from a fifty- to sixty-mile-wide coastal area stretching from Washington state to California and extending inland into southern Arizona, later designated as Military Area No. 1. The order also authorized transporting the affected people to assembly centers set up by the military in California, Arizona, Washington state, and Oregon.

Some Japanese community leaders were arrested and imprisoned immediately after the Pearl Harbor attack. The rest of the people of Japanese ancestry on the west coast were forcibly removed to prison camps in the spring of 1942, where most remained until 1945. The military enforcement of this order uprooted individuals, families, and entire communities.

The Japanese residents of the affected area were given two days’ notice to pack their belongings and report for transportation out of the area. 110,000 persons were forced out of their homes and relocated to prison camps. There the prisoners lived for 2 ½ years or more in crowded barracks surrounded by barbed wire fences and guard stations manned by armed soldiers with guard dogs. The internment cost the prisoners their livelihood, their savings of a lifetime, their businesses, and their homes, all gone when the prisoners returned home after release. ²⁶

Fred Korematsu was born in California in 1905 to parents who had immigrated from Japan. Korematsu lived continuously in Alameda County, California until his arrest by agents of the United States in 1942. After the Pearl Harbor attack he was fired from his job and was unable to obtain another due to his Japanese ancestry.

On March 27, 1942, General John DeWitt, the commanding General of Military Area No. 1 issued an order prohibiting Japanese Americans from leaving the limits of the area, in preparation for their eventual evacuation to internment camps. On May 6, 1942 the General ordered Japanese Americans to report on May 9 to Assembly Centers from which they would be removed to the internment camps.

Korematsu refused and went into hiding. He was arrested and jailed. A lawyer for the American Civil Liberties Union took up his defense, as a test of the legality of internment of people solely on the basis of their race. Korematsu was tried and convicted in federal court and thereafter he and his family were transferred to an internment camp in Utah. ²⁷

Korematsu appealed his conviction. His case was accepted for hearing by the United States Supreme Court. At issue was whether the U.S. Constitution permitted the mass expulsion of persons of Japanese ancestry, including American citizens, from their homes on the west coast of the United States. The Court ruled that U.S. Constitution did not preclude the exclusion of persons of Japanese ancestry from the west coast of the United States. ²⁸

For virtually all of the 110,000 persons expelled from the west coast, there was no charge by the U.S. that they had done anything in violation of the laws of the United States. They were singled out and expelled from their homes not on the basis of any act of any individual among them, but solely on account of their race and the existence of war between the U.S. and Japan.

Under the standard of Justice of this chapter, an injustice was perpetrated against Fred Korematsu and 110,000 other persons of Japanese ancestry solely on account of their race. Some four decades later the U.S. tacitly admitted this was an injustice when the Congress of the U.S. voted to pay $1.6 billion as restitution to the survivors of the internment.

The perpetrator of this injustice was the government of the United States. In a decision concurred in by seven of the nine judges of the Supreme Court, the court endorsed this injustice as being compatible with the United States Constitution, due to wartime exigencies.

Two of the Justices dissented from the decision. Justice Owen Roberts wrote in dissent, that “[This is a] case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. . . . [His] . . . Constitutional rights have been violated.”

Justice Robert Murphy wrote in dissent that, “The main reasons relied upon by those responsible for the forced evacuation . . . do not prove a reasonable relation between the group characteristics of Japanese Americans and the dangers of invasion, sabotage and espionage.

“No one denies, of course, that there were some disloyal persons of Japanese descent on the Pacific Coast who did all in their power to aid their ancestral land. . . But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that, under our system of law, individual guilt is the sole basis for deprivation of rights.

“No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal . . .

“[T]here was no adequate proof that the Federal Bureau of Investigation and the military and naval intelligence services did not have the espionage and sabotage situation well in hand during this long period. Nor is there any denial of the fact that not one person of Japanese ancestry was accused or convicted of espionage or sabotage after Pearl Harbor while they were still free . . .” ²⁹

TYRANNY OF THE MAJORITY

The U. S. Constitution does not protect individual Americans from the tyranny of the decision of the majority, as exemplified by internment of Japanese in the U.S. in WW II and decision of the Supreme Court in the Korematsu case. That decision is characteristic of the idea of judicial deference to the will of the majority, a principle stated most emphatically by Oliver Wendell Holmes, Jr. (1841—1935). Holmes was perhaps the most influential judge in U.S. history, and an Associate Justice of the U.S. Supreme court for thirty years.

Holmes believed that the majority must get its way regardless of whether or not minorities got trampled in the process. Said Holmes,

“If my fellow citizens want to go to hell I will help them. It’s my job . . . It is no sufficient condemnation of legislation that it favors one class over another [for all laws are] . . . necessarily . . . a means by which a body, having the power, put burdens which are disagreeable on the shoulders of somebody else . . . A law should be called good if it reflects the will of the dominant forces of the community . . . even if it will take us to hell . . . It is not our job to protect the people from the consequences of their political choices.” ³⁰

Holmes was personally a fine man, a man of integrity. He was a legal scholar with a profound understanding of the law and the traditions of English and American law. His work on the U.S. Supreme Court was animated by a deep respect for political democracy. However, his ideas about rule of the majority could justify upholding even the murderous laws of Nazi Germany if the majority of Germans approved of them.

The laws of the United States perpetrate injustice because all of them, without exception, are either a means of interfering with the lives and property of individuals and of companies owned by individuals, or if they were intended originally to protect life and property they are applied and enforced in such a way as to do harm to individuals who have harmed no one. Such laws and law enforcement injure society generally. If this seems an extreme statement upon first reading, CTLR submits it will not seem so to many, if not most, readers after consideration of the injustices described further below, injustices all authorized by political laws of the United States and perpetrated by law enforcers—legislators, police, prosecutors, judges and juries, and prison administrators.

TAXATION AS LEGALIZED THEFT

The United States of America and the individual states finance their operations by stealing.

The theft is called taxation.

Taxation is injustice under the definition of injustice in this chapter. It is interference with property to which there is no recourse.

This book has examined the subject of taxation as theft in some detail, in Chapter 18, entitled Kleptocracy. There is no reason to say  much about taxation here, except to observe that this chapter would be incomplete if it did not make the connection between taxation and injustice.

The injustice of taxation is inflicted on most people every week during their life in the United States, because income tax liability accrues during every hour that individuals are gainfully employed to earn the money to support themselves and their families. The transfer of money to pay taxes occurs periodically during the year for some, weekly or monthly for others, and every time an individual spends money on goods and services subject to state and local sales tax and federal and state tax on gasoline.

A taxpayer’s acquiescence in having his property taken by taxation can no more be attributed to voluntary and willing consent than a man’s submission to induction into an army that occurs under threat of imprisonment or death for refusal to submit to conscription.

Fines and punishment are meted out by the state to individuals who violate the elaborate laws of theft laid out in federal and state tax laws. If an individual persists in refusal to pay tax, eventually the state tax enforcers will pay him a visit, armed and ready to use violence to arrest him and take him to jail to face tax evasion charges.

Taxation causes involuntary servitude. Not only must the taxpayer work to earn the wherewithal to pay the tax, he or she must also work to prepare a report to the state, by means of a tax return, to inform the state how much tax is required. Many pay other people to prepare their tax reports, an additional amount attributable to the theft that the individual must calculate and report to the state.

No business corporation or private organization of any kind can legally send people with guns to the home of an individual or to a business establishment to compel payment for its services or obedience to its rules. Only the state claims such a right.

THE CIVIL vs. CRIMINAL LAW DISTINCTION

Political laws concerning disputes among humans include two categories, described as civil and criminal. State criminal law is based on punishment. Crimes are defined by legislation which also specifies punishment for those convicted of the prohibited conduct. Andrew Galambos observed correctly that all political laws describe things people must not do or things they are required to do. Violations of legislatively mandated rules may not be a crime at all under the principle of the biblical Golden Rule: Do not unto others that which is hateful to you. In the vision of justice in human society in this book, conduct that harms no other person ought not to be prohibited; and the law of a society should not command people to do things that violate human nature.

In civil law, the state has civil law courts for resolution of disputes not involving crimes. State civil dispute resolution has pathologies of its own and other pathologies in common with the criminal law of the state. CTLR will take up state civil law in the context of the presentation of better ways to resolve disputes arising out of contract or tort. The word tort in English and American law refers to  negligent or deliberate acts which harm another, but are not treated as crimes, e.g., injuries caused by negligent operation of an automobile.

VICE COMPARED TO CRIME

Much of the trouble that plagues American society arises out of treating personal vices as crimes. A great American, Lysander Spooner (1808-1887), wrote an essay entitled Vices Are Not Crimes: A Vindication of Moral Liberty (1875). It begins with the following remarks.

“Vices are those acts by which a man harms himself or his property.

“Crimes are those acts by which one man harms the person or property of another.

“Vices are simply the errors which a man makes in his search after his own happiness. Unlike crimes they imply no malice toward others, and no interference with their persons or property.

“In vices, the very essence of crime—that is the design to injure the person or property of another is wanting.

“It is a maxim of the [common] law that there can be no crime without a criminal intent; that is, without the intent to invade the person or property of another. But no one ever practices a vice with any such criminal intent. He practices his vice for his own happiness solely, and not from any malice toward others.

“Unless this clear distinction between vices and crimes be made and recognized by the laws, there can be on earth no such thing as individual right, liberty, or property; no such things as the right of one man to the control of his own person and property, and the coequal rights of another man to the control of his own person and property.

“For a government to declare a vice to be a crime, and to punish it as such, is an attempt to falsify the very nature of things. It is as absurd as it would be to declare truth to be falsehood, or falsehood truth.” ³¹

The requirement of the existence of intent to do harm for an act to be criminal, mentioned above, was the common law of England as it evolved over more than one thousand years. That approach to the law of crimes has been virtually eradicated in the United States by the legislative creation of a multitude of criminal offenses not requiring intent to do harm. These are called “Malum prohibitum,” which is “a Latin phrase used in law to refer to conduct that constitutes an unlawful act only by virtue of statute, as opposed to conduct evil in itself.” ³²

The U.S. “War on Drugs” is an example of a panoply of laws that are Malum Prohibitum. The War on Drugs, like the U.S. prohibition of alcoholic beverages before it, has created true crimes, conduct that harms individuals, conduct spawned by the enormous monetary incentive to engage in and control an illicit activity consisting of supplying people with the means to satisfy their personal vices.

RESTITUTION-BASED JUSTICE COMPARED TO PUNISHMENT-BASED INJUSTICE

Andrew Galambos taught that true protection of persons and property could be achieved only by a system of justice based on restitution; that punishment for harmful acts did not benefit parties whose persons or property had been attacked; rather, that punishment of wrongdoers aggravated and exacerbated the harm done to persons and property.

Galambos posited that restitution was the most beneficial way to remedy attacks on persons and property, and that punishment did nothing to accomplish restitution, but actually impeded and prevented restitution. This chapter elaborates those ideas. The discussion begins with an example of restitution-based justice in a contemporary human society still in the Neolithic stage of technology as recently as the 1950s.

JUSTICE IN AN ACCIDENTAL DEATH CASE IN A CUSTOMARY LAW SOCIETY

The following incident is related by anthropologist Jared Diamond who heard of it from one of the participants. ³³ The incident occurred in the highlands of Papua New Guinea, a political state comprising the eastern 60% of the island of New Guinea in the southwestern Pacific Ocean, north of Australia.

Papua New Guinea is inhabited by seven million people. Most of them live in tribes in rural settings. Although Papua New Guinea in the early 21^st century has an airport, roads, hospitals, schools, automobiles, police and courts, those contemporary facilities are located mostly in the lowlands of the island. Most of the Papuans, especially those in the highlands, continue to govern themselves with their customary traditions that antedate exposure to Europeans in the 19^th and 20^th centuries.

Papua New Guinea has about 700 different tribes speaking as many different languages. The Papuans of New Guinea bear a close physical resemblance to the Aborigines of Australia. Like the Australian Aborigines, the Papuans have inhabited their home territory for about 50,000 years. Because New Guinea receives a great deal of rainfall the flora is abundant. Similarly to humans in the Middle East, Papuans developed agriculture starting about 10,000 years ago, after the end of the most recent glacial period of the Pleistocene Ice Age.

Papuan tribes living in highland valleys did not encounter modern man until 1931 when Australians penetrated into their territories. That was a cultural shock to them. In the 1930s the highland Papuans were still in the Neolithic era, using stone tools. They knew nothing of the technological advances that had occurred elsewhere over the past 7,000 years, since the more advanced civilizations developed writing and mathematics, then all that followed up until the modern technology of the 1930s. According to Jared Diamond, “New Guinea Highland societies . . . lacked not just manufactured clothing but also all modern technologies, from clocks, phones, and credit cards to computers, escalators, and airplanes . . . They lacked writing, metal, money, schools, and centralized government.” ³⁴

Diamond comments that the highlanders of New Guinea lived as did all the peoples of the world just 7,000 years ago. They had developed agriculture, but none of the further technological advances that agriculture gave birth to elsewhere in the world.

However, Diamond observes, “. . . Within a generation or two . . . New Guinea Highlanders learned to write, use computers, and fly airplanes.” ³⁵

Diamond posits that the Highlanders could teach modern man something important. That is, in cases that would be either the subject of criminal law, or prolonged civil tort litigation, in the United States, the Highlanders’ way of resolving disputes was by mediation and arbitration, and by restitution, not punishment. Their dispute resolution was fast and efficient. They had no prisons, and no punishment, except in rare cases.

The highland valleys of New Guinea are fertile agricultural lands located between mountains ranging in height from 13,000 feet to 16,000 feet (8,000 to 10,000 meters). There the Highlanders live in hundreds of tribes, speaking hundreds of different languages. That was still the case when Diamond visited New Guinea in 2006. During that visit Diamond learned of the following incident, that he relates in his book The World Until Yesterday: What Can We Learn from Traditional Societies? (2012).

One afternoon an automobile driven by a man named Malo accidentally struck and killed a young schoolboy, Billy. He was riding home from school in a public mini-bus, going to meet an uncle, who would pick Billy up and take him home.

At the place where Billy’s uncle was waiting, the bus stopped, Billy descended and ran around to the back of the bus and out into the street, right in front of Malo’s car. Billy was struck and killed. It was obviously not the fault of Malo. That did not mean there would be no trouble for Malo with Billy’s family.

Malo was driving for an employer. He went straight to the police, to protect himself from harm from enraged kin of Billy, and then to his employer, a man named Gideon, and told him what happened.

Malo and Billy were from different ethnic groups, a recipe for tension. Billy was a lowlander, from a tribe that had moved to the Highlands for work. Malo and his employer were highlanders. If Malo had gotten out of his car he could have been in big trouble, which is why he went straight to the police station. Otherwise, some of Billy’s ethnic group who witnessed the accident might have killed him on the spot.

Gideon told Malo to go and hide while he tried to work things out. Gideon also told his wife to take their children and hide, because he expected a visit from Billy’s family members, who were going to be very upset and perhaps could cause trouble.

Gideon waited in his office. Soon, to his horror, three large men appeared, standing outside the back window of Gideon’s office They were lowlanders. Gideon’s first thought was either I smile at them or I run. He managed a smile and opened the door to his office knowing that could prove fatal immediately, but now he had now alternative.

One of the men was Peti, father of Billy. He asked can I come into your office and talk to you. Yes, said Gideon.

The Papuan concept of Justice is that a person who harmed someone, even intentionally, can make things right by paying compensation to the injured party. The Papuans call the compensation “sorry money.” Usually, nothing more is required of the offender.

Peti sat quietly for a while. For a man still in a state of shock over loss of his son he was nevertheless calm, respectful and direct. Finally he said to Gideon, “We understand that this was an accident, and that you didn’t do it intentionally. We don’t want to make any problems. We just want your help with the funeral. We ask of you a little money and food, in order to feed our relatives at the ceremony.” Gideon responded by expressing sympathy and by making some vague commitment.

Note: It is probable that the men communicated in pidgin English, as in New Guinea each tribe has a different native language.

The next day Gideon talked to an older New Guinean named Yaghean, who was experienced in New Guinea compensation negotiations. Yaghean offered to handle the negotiations. Gideon wanted to go to Billy’s family and make a formal apology and attempt to defuse the threat from Billy’s extended family. Yaghean said no, it is too soon. Let their tempers cool for just a little, then I will go for you. I will go through the compensation process with the councilor for the ward that includes the lowlander settlement and he will talk to the lowlander community.

The two negotiators arranged for Gideon’s company to buy food for the funeral ceremony and pay an additional amount, the equivalent of US $300, as compensation. This Gideon did. On the fifth day after the accident Gideon and his staff, except Malo, went to the village of Billy’s family. Everyone was emotional. Billy’s father Peti expressed his sadness at Billy’s death. Gideon said he understood because he had young children of his own. His sympathy was genuine and obviously heartfelt.

Then the funeral ceremony started. Billy’s father expressed his sadness again and Gideon again expressed his empathy and sympathy. Gideon said he knew the food and money was mere rubbish compared to the loss of Billy. Billy’s father acknowledged the death was an accident and no fault of Gideon or his company. Peti thanked Gideon for being there and said “You people won’t have any problems with us; we are satisfied with your response and with the compensation.”

Everybody was crying.

After the talks everybody ate together, Billy’s family and Gideon and his staff. There was much shaking of hands after the ceremony and the feast. That was the end of the incident. The entire incident from the accident to the funeral ceremony occurred over just five days.

Diamond compares this to what would probably have happened in the United States. The dead child’s family would be planning a civil lawsuit, and the accidental killer’s family would be consulting lawyers and their insurance broker in order to defend themselves against the lawsuit plus possible criminal charges. ³⁶

Diamond comments further, “I asked Malo and Gideon what would have happened if Malo really had murdered Billy intentionally or if Malo had at least been unequivocally negligent.

“Malo and Gideon replied that, in that case, the matter could still have been settled by the same compensation process. The result would just have been more uncertain, the situation more dangerous, and the required compensation payments larger. There would have been a greater risk that Billy’s relatives would not have awaited the outcome of the compensation negotiations, or else would have refused payment and instead would have carried out a so-called payback killing, preferably by killing Malo himself, or someone of his close family if they didn’t succeed in killing Malo . . .” ³⁷

Comment: It is significant that the negotiator for Gideon and Malo wanted to approach Billy’s people in a way that would allow time for cooling of anger about Billy’s death. That forestalled revenge killing of Malo. A revenge killing would likely have led to retaliation followed by counter-retaliation, which in turn could have escalated into inter-tribal warfare. ³⁸  The negotiator must have had in mind that the prospect of “sorry money” compensation instead of war would have a deterrent effect on the instinct to take revenge by killing Malo. Deterrence of violence by the prospect of prompt and adequate compensation for injury is an important component of non-coercive justice. 

Restitution-based justice in early medieval England

The Roman occupiers of Britain had departed for good about 450 C.E. For the next 500 years, justice in England was the justice of the Germanic tribes that began entering England as Roman military power waned in the 5^th century C.E. An English legal scholar observed that the Anglo-Saxons “. . . had an abundance of customs and laws sufficiently well established for practical purposes.” ³⁹ A leading history of English law states that “. . . written Anglo-Saxon laws . . . are mere super-structures on a much larger base of custom.” ⁴⁰

Professor Bruce Benson reports that “the [customary law of the] primitive German tribes from which the Anglo-Saxons had descended . . . [provided for] payment of restitution . . . Anglo-Saxon law prior to the Norman invasion ⁴¹ had virtually all the characteristics of primitive legal systems. . . [T]he laws delineate economic payment for homicide, various kinds of wounds, rape . . . indecent assaults [and theft].” ⁴²

As English historian, Sir James Hamilton Baker, explained, public meetings were held to “. . . encourage the parties to settle their differences or at least submit them to arbitration. The parties can air their grievances before their fellows, and with communal advice perhaps reach a compromise. If the parties cannot agree, the community does not act as a judge or jury, but may agree on the test which the parties, or one of them, should perform to establish the truth of the matter. Procedures of this sort do not evolve through coercion, but parties who do not cooperate may be put outside the protection of the community.” ⁴³

According to Professor Benson’s account, “By the tenth century in much of Anglo-Saxon Britain . . . neighborhood groups . . . [had evolved] as cooperative protection and law enforcement associations . . . An individual who was not bonded by such a group was effectively an outcast, forced to be self-sufficient, so individuals had strong incentives to join a group. Because others in the group provided insurance (credit) for all members, however, they would not accept or keep someone who was not of good character . . . providing strong incentives to abide by the law . . . Monetary payments could be made if it was the first offense by the aggressor. Even homicide was compensated by monetary restitution. Refusal to submit to arbitration made the offender an outlaw. And refusal for the accuser to accept the monetary fine made the accuser an outlaw.” ⁴⁴

Benson observes further that under the customary law of early medieval England, “Monetary payments could be made for any offense committed by the aggressor. ‘A deed of homicide,’ for example, ‘can be paid by money . . . the offender could buy back the peace he had broken.’ Refusal to submit to arbitration would result in a legal right for the accuser to take the life of the accused. Likewise, refusing to accept the [arbitration decision] put the accuser outside the law. Refusal by either party to yield to [the arbitration decision] . . . led to outlawry . . .

“Institutions were developed to avoid violence even when a person was unable to pay his fine. For certain offenses involving especially large fines, there was another option as well. ‘Slavery was recognized as a penalty when the thief was unable to make restitution. This . . . might be regarded as handing over the debtor’s person by way of compensation rather than a punishment in the modern sense.’” ⁴⁵

NOTE: Except for the lack of the institution of insurance as a primary means of restitution, and the lack of a remedy for wrongful accusation, the customary law of early medieval England had all the characteristics of Andrew Galambos’ conception of restitution-based justice, a subject to be presented later in this chapter. Those characteristic in early English customary law were:

• Mediation, followed by arbitration if mediation did not settle a dispute
• Restitution by monetary payment rather than punishment
• Provisions for inability of the accused to pay (allowance of time to pay or personal servitude)
• Loss of credit in the form of ostracism for refusal to arbitrate or for failure to abide by an arbitration, this sanction applicable to both the accuser and the accused

Transition from restitution to punishment in England: paying the King for dispute resolution

By the ninth century C.E. England was ruled by kings, not just one but several who had power over particular territories. By the eleventh century there was a single king of England, a development brought about by violence in which the most militarily potent, ruthless, and merciless tyrant vanquished all rivals, as illustrated in the motion picture Braveheart (1995). ⁴⁶

Gradually, English kings took control of the process of dispute resolution. They did this because they charged both parties for the service. Eventually the Kings of England asserted a royal monopoly of dispute resolution. Injury to another or violations of the property rights of another were called a violation of “the King’s Peace.”

In this way the people of England lost the restitution-based justice they had previously even in the case of crimes, because the kings instituted punishment rather than restitution as an instrument of justice. Both the offender and the victim lost freedom and justice. The offended person got no restitution. The offender was sent to prison or even executed, depriving him of his freedom or his life and depriving both the offender and his victim of the benefit of restitution-based justice.

The establishment of the “King’s Peace” in England instituted a regime of brutal punishment, judging from the use of execution, which had been unusual in the restitution-based customary law of the Anglo-Saxons. Capital punishment was imposed in in a wide variety of cases in England under the rule of its kings. For example, in the time when the great scientist Isaac Newton was Warden of the British Mint and then Master of the Mint (1696-1727), convicted counterfeiters were punished by being hanged, drawn, and quartered. ⁴⁷

One night in 1792, the celebrated author, philosopher and political theorist Thomas Paine (1737-1809) fled England after being warned by his friend, the poet and artist William Blake, “you must not go home [tonight], or you are a dead man.” Paine was then under investigation for sedition, an offense punishable by death, on account of ideas in his famed and immensely popular book Rights of Man (1791). ⁴⁸

During the reign of English King Henry VIII (1509-1547), as many as 72,000 people are estimated to have been executed, roughly 1,900 per year, out of a population of approximately three million in England and Wales.  ⁴⁹   If the U.S. in the early 21^st century had a per capita execution rate like that of 16^th century England, the state would put to death nearly 200,000 people each year. In actuality, in the United States, in the year 2014 there were thirty-four executions out of a population of more than 300 million.  ⁵⁰

In civil disputes not amounting to a crime, early English common law under the Kings of England provided for resolution of disputes concerning contracts and torts (injuries to another not involving contract or a crime). However, in England and elsewhere in Europe another form of contract law was established in commerce, known as the law merchant.

CUSTOMARY LAW FOR DISPUTE RESOLUTION IN TRADE AND COMMERCE

The law merchant developed in Europe during the late medieval and renaissance periods. It is the law of dispute resolution in trade and commerce. It evolved separate and apart from the courts of kings. A dispute would be submitted to an arbitrator who was a person respected by the parties, rather than being submitted to a royally established court. The consequence of not complying with an arbitrator’s decision was commercial boycott and ostracism from trade. This was powerful incentive to accept an adverse resolution.

The law merchant, referred to internationally in Europe by the Latin term lex mercatoria, was originally a body of rules and principles laid down by merchants to regulate their dealings. ⁵¹ From inception the Law Merchant consisted of rules and customs common to merchants and traders in Europe, with some local variation. It originated from the desirability of quick and effective resolution of commercial disputes. It was administered by specialized courts.

The lex mercatoria could be enforced through the local courts. However, merchants almost invariably preferred the private mediation and arbitration under the law merchant because they wanted their disputes resolved speedily, sometimes on the hour, with the least cost and by the most efficient means. Courts of monarchies could not provide prompt resolution of a dispute. A trial before the king’s court would delay business, and that meant losing money. The lex mercatoria provided quick and effective justice by means of expert arbitrators, informal hearings and rules of procedure.

The guiding spirit of the merchant law was that it ought to derive from commercial practice, respond to the needs of the merchants, and be comprehensible and acceptable to the merchants who submitted to it. Contemporary international commercial law today owes some of its fundamental principles to the lex mercatoria. This includes choice of applicable law and arbitrators, and rules of law based on customs, usage and practice.

Judges were chosen according to their commercial background and practical knowledge. Their reputation rested upon their perceived expertise in merchant trade and their fair-mindedness. Gradually, a professional judiciary developed through the merchant judges. Their skills and reputation would, however, still rely upon practical knowledge of merchant practice. These characteristics continue to the present as important measures in the appointment of international commercial arbitrators today. ⁵²

FREE ENTERPRISE JUSTICE

This portion of the treatment of justice sets forth ideas presented by Andrew J. Galambos in his lecture Course V-50. An edited transcription of Galambos’ V-50 lectures presented in 1967-1968 has been published in book form under the title Sic Itur Ad Astra: This is the Way to the Stars (1999). The subtitle, “This is Way to the Stars,” signifies Galambos’ objective of fostering a peaceful and just social structure in which innovators could preclude the use of their innovations for destructive purposes, and could develop science and technology that would enable human beings to travel into the cosmos.

The treatment of the subject of free enterprise justice in this chapter is a general overview of the subject, not a detailed plan for achieving justice through free enterprise. As with all positive developments in the domain of human action and interaction, free enterprise justice will evolve to meet the needs of people. Social institutions evolve over time and are modified to meet the needs of people. That is true of social institutions relevant to justice, such as contract, insurance, credit, and corporations.

For example, the basic concept of contract is an agreement between two or more parties involving an exchange of property. Since property includes life, the relationship of marriage is contractual, although marriage is not usually thought of in terms of property.

The existence of an agreement is the sine qua non of contract. At first consideration, it may appear to be a simple question of fact whether there has been an agreement. However, it is not always clear that a contract has been made. That is why the very first subject taken up in law school classes on contract is whether or not two or more parties have actually provided each other with the manifestation of mutual assent which is the essential element of formation of a contract.

That there are contracts is a given. The details of contractual formation and operation are subject to many contingencies, both foreseeable and unforeseeable, which are the subject of the English common law of contract and its counterpart in American law.

Similarly with free enterprise justice, the principle is simple: justice requires restitution of property that has been misappropriated or damaged by the act of another person. The arrangements and technologies for achieving restitution, and hence justice, are more detailed than the principle.

A useful analogy for understanding principles as contrasted to their application is the perhaps apocryphal story attributed to Hillel, the Jewish sage of antiquity who was active and influential among the Hebrews in Palestine in the forty-year period 10 B.C.E. to 30 C.E. ⁵³ Legend has it that when the homeland of the Hebrews was at that time occupied by Roman conquerors, a Roman soldier said to Hillel, tell me about your religion while standing on one foot. Hillel replied: “Do not unto others that which is hateful to you. All the rest is commentary.” Whether or not this is a story of a real historical event, it illustrates the distinction between a general principle and its application, and illustrates also the moral and ethical prohibition against harming other people that is common to many, if not most, religions.

The mechanism and technologies of free enterprise justice already exist and are in operation to some extent. They will evolve over time. At present it is neither feasible nor desirable for anyone to plan in detail the future actions of other human beings in seeking and achieving justice, as those actions will be determined by the specific goals that people decide upon and the means they choose to achieve those goals.

Restitution the objective

Restitution is the objective of free enterprise justice, hereinafter referred to sometimes  with the single word justice. Galambos provided a useful definition of justice as the elimination of injustice. He defined injustice as a crime to which no recourse exists, where there is no way to recover one’s property. To eliminate injustice requires the restitution to the owner of property that has been misappropriated, damaged or destroyed by the action of other persons. If property has been misappropriated or damaged, there is no injustice if there is a way to restore the property to its owner. ⁵⁴

Property includes the lives of individuals. In the present state of knowledge in biology and medicine, life cannot be restored after injury has stopped the operation of the heart and lungs or caused irreparable loss of function to the brain and central nervous system.

Monetary compensation is not restitution of life. However, monetary compensation is the only form of restitution available until there are further advances in human understanding of biology and life-saving medical technology.

As noted above in this chapter, monetary compensation for homicide was recognized and used by humans in the preliterate, Neolithic stage of cultural development. This was evident in the customary law of traditional societies as disparate as the Papuans of New Guinea at present and in Anglo-Saxon England as early as 450 C.E.

Insurance as the means for prompt restitution

Insurance was developed in human civilization to provide restitution for loss of property or damage to property. Insuring property provides the owner with a source of prompt restitution for loss and damage. The customer has paid the insurance company in advance to assume the risk of loss and damage.

Usually property and casualty insurance does not cover all (100%) of a loss. The property owner retains the claim against the offender to the extent that the insurance payment falls short of the total loss sustained.

Restitution to the insurer and the insured from the offender

When insurance covers part of a loss, the insurance company becomes the ally of the insured in recovering that part of the loss. Once the party who caused the loss has been identified, and the amount of the loss established, the work of the insurance company in seeking restitution for its own sake redounds to the benefit of the insured. The insured is relieved of the burden of seeking out the offender and obtaining restitution for his offense.

For example, in case of embezzlement from a business, the insurance contract for that risk usually has a deductible and a limit to the amount the insurance company will pay. That is only good business for the insurance company. Without a deductible and a limit to liability, insurance actuaries and underwriters could not estimate the cost of insuring the risk and could not price the risk properly.

However, once the insurance company has determined that, in fact, there has been a loss from embezzlement, it will pursue restitution from the embezzler.

Insurance investigation

In many instances of loss, the perpetrator of the attack on property is unknown to the victim, for example, in cases of homicide, burglary, and even armed robbery. The victim is ill equipped to investigate to determine the identity of an unknown culprit. Insurance companies make such investigation their business.        

Insurance companies employ professional investigators and detectives, either directly, or by arrangement with independent investigators. Some of the world’s most capable investigators and detectives are employed by insurance companies, for good reason; the investigator or detective is sure to be highly motivated and well paid by an insurance company to achieve success in his work.

One of the earliest examples of a professional detective is the Pinkerton Detective Agency, founded in Chicago in 1850 by Alan Pinkerton. The popular motion picture Butch Cassidy and the Sundance Kid (1969) memorializes the work of the Pinkerton Agency in the case of the notorious bank and train robbers, Robert Lee Parker, known as Butch Cassidy, and his accomplice Harry Alonzo Longabaugh, known as the Sundance Kid. After Parker and Longabaugh had pursued a career in crime for several years in the 1890s in the western United States, the pressure of the relentless pursuit of the Pinkerton detective agency impelled them to flee to South America, where they died a few years later in a confrontation with Bolivian soldiers. While the Pinkerton detective agency did not capture the robbers, it did protect property by putting an end to their career of crime in America.

Complete restitution for direct and consequential losses

“Crime does not pay” is a saying that is false. It does pay, or there would not be so much of it. Over half of violent crimes and over 80% of property crimes are not solved by the police. ⁵⁵ In Orange County, California, in 2012, a man was convicted and sentenced to life in prison after admitting to 2,000 burglaries. ⁵⁶

Police have no proprietary interest in preventing crime. They have no duty to prevent crime and no responsibility for failure to prevent it. That is not their job. Law enforcement is their job. Law enforcement is entirely different than crime prevention. It will be surprising to many Americans that state and federal laws provide that police officers have no duty to people to protect them from crime. That was affirmed by the United States Supreme Court in 2005, and by a Court of Appeals in California. It is the law in every state in the United States. ⁵⁷

In contrast, law enforcement is not the business of the insurance and security industries. Their business, and their reason for existing, is to protect persons and property. These industries have a proprietary interest, a profit motive, in minimizing loss and damage to insured persons and property, however caused. The Security industry seeks to prevent loss in the first place. If losses do occur, the insurance and security industries can be effective agents in bringing about complete restitution for losses whether due to crime or otherwise.

For example, in the case of a car theft, return of the car to its owner does not reimburse the insured or the insurer for all the loss. The expenses could include all of the following.

• The insurance company’s cost of investigation
• The insurance company’s cost to recover the car
• Damage to the car during wrongful possession by the thief
• Depreciation in market value over the period of wrongful possession by the thief
• The expense of a replacement vehicle incurred by the car owner until the car is recovered

Even if the car is recovered because the car thief is identified and apprehended, the insurance company will require the thief to make restitution for such additional expenses. The thief will make restitution. Suffice it to say for here that there will be a powerful motivation for the thief to make restitution because of the effect on his life caused by the bad credit due to his crime.

Credit, reputation, and restitution

It was explained above in this chapter how in traditional societies, operating with their customary law, social pressure to make restitution was a powerful motivator. Banishment was the consequence of failure to make restitution in such societies. Banishment meant almost certain death, because the offender lost the support of his tribe or community and was unwelcome anywhere else. Therefore someone found obligated to make restitution always did so because the consequences of not making restitution were so dire.

Similar consequences will befall an offender in contemporary societies where credit is the usual means of purchasing the necessities of life. As explained in the chapter on credit and reputation, ⁵⁸ most financial transactions are effected through banks, by use of a credit card, debit card, a check drawn on a bank account, or cash withdrawn from a bank account.

Andrew Galambos posited that it will be in the interests of those businesses that offer credit to deny it to known criminals, including those who fail to make restitution after a determination that it is their responsibility to do so. That seems incontestably true. Banks at present in America do not want to offer an account to someone with bad credit. The risk of loss to the bank from such people is not worth the amount the bank could earn by doing business with them.

Why should any bank or vendor transfer value of any kind to someone known to have repudiated his financial obligations? It is already a fact of contemporary life in America that some people have so besmirched their credit that they cannot obtain or keep a credit or debit card from a bank and may even have lost the ability to keep a driver’s license due to unpaid traffic citations.

CTLR deplores traffic citations by policemen as entirely the wrong way to provide for safe roads and highways. In a free, stateless society, road service would be provided by road companies that owned and operated roads. On those roads, there would be no traffic stops by a policeman, no citations for traffic law violations, no court appearance to contest a citation, and no fine to be paid consequent to a traffic citation. However, there would be measures to assure safe driving. A motorist who demonstrated irresponsibility in the way he drives would lose the privilege of driving on proprietary roads. Furthermore, the privilege of driving on roads could be lost due to bad credit caused by failure to pay debts including failure to make restitution for damages or injuries to other people.

Generally, at present, two forms of identification, including one with a picture of the individual possessing such identification, are necessary to open a bank account or to board a commercial aircraft flight. Someone lacking those forms of identification would be virtually stranded wherever he happened to be—unable even to travel to another place. Roads and all forms of public transportation would be unavailable to him.

Galambos foresaw that contractual oblivion would be the fate of outright deadbeats who create a public record of financial irresponsibility and default on obligations. By contractual oblivion he meant that for purposes of securing credit and making purchases, such a person would be a virtual outcast and pariah. No one would want to deal with him. That would be an outcome in which crime would not pay. It would be the contemporary equivalent of banishment in a traditional society operating under customary law.

While the loss of credit and reputation could not prevent all criminal activity, it seems virtually certain that it would diminish criminal activity great deal by making it very difficult for crime to pay. That would make the cost of crime to an offender greater than its benefit. There would be a powerful motivation to respect property. It would be, as F. A. Hayek observed, that “Mankind achieved civilization by developing and learning to follow rules . . . that often forbade him to do what his instincts demanded.” ⁵⁹ That is, social pressure causes people to refrain from doing things their instincts demand that they do because the consequences to others are so adverse as to cause isolation for the offender.

That social pressure arises out of the need of people to associate and deal with other people in seeking to obtain the necessities and desiderata of life, whether they are needs for material goods or the need to avoid being cut off from social interaction with others. When one’s anti-social actions have the effect of cutting him off from association with others, the price of crime will be too high to pay. That will be true justice—the elimination of injustice.

Dealing with restitution costs that exceed an offender’s ability to pay in full

The cost of restitution could exceed the ability of an offender to pay in full. That would be a pity for all concerned, but especially the offender.

Insured individuals could count on insurance reimbursement to the extent of the insurance coverage. Insurance companies would take into account that some offenders could not reimburse the insurance company for its costs of indemnity and seeking restitution. That fact would be built into the price of insurance, as an expense of doing business.

Offenders could be afforded time to pay restitution that exceeded their current resources. It would be like paying any other debt in installments over time. The offender would pay principal and interest just as any other debtor does when he has been granted time to pay an obligation.

Earlier in this chapter it was mentioned that in medieval, Anglo-Saxon England, customary law had developed ways to avoid violence even when a person was unable to pay restitution. For offenses involving especially large costs of restitution, slavery was recognized as an alternative means of payment. The individual made restitution by working as a slave for the person he had injured. In that society slavery was better than the alternative of banishment.

Similarly, in contemporary society an offender would not get off scot free if he was impecunious. He would have to pay the price of virtually enslaving himself for the rest of his life by working to make as much restitution as he could.

Wrongful accusation

In cases of wrongful accusation, the accused would not be helpless to defend himself under free enterprise justice. Andrew Galambos mentioned that insurance companies could find it profitable to offer wrongful accusation insurance. For the price of insuring against that risk the insurance company would defend the accused, investigating to discover evidence of his innocence to present in arbitration of the claim against him.

Wrongful accusation insurance could also provide for payment by the insurer to its customer for damage to reputation due to wrongful accusation.

Persons found to have made a wrongful accusation would themselves be responsible to make restitution, by payment to the person wrongfully accused and to his insurer for costs of vindicating the accused.

Someone already burdened with bad credit and reputation could find it difficult to buy wrongful accusation insurance. An insurance company could decide that the likelihood of the truth of the accusation was too high to justify insuring against it, a decision based on the established record of bad credit of the person seeking to buy wrongful accusation insurance.

Homicide and other extreme cases of loss and damage

As described above in the discussion of customary law in Papua New Guinea and early medieval England, monetary payments were a recognized form of restitution for homicide.

The tort of wrongful death is a recognized cause of action in the civil law of America. ⁶⁰ In restitution-based justice there would be no reason not to allow the perpetrator of homicide to make restitution by monetary payment.

Life insurance would be insurance not only against the loss to a family due to the premature death of a loved one, it would also be a deterrent to intentional homicide. With competent detective and investigative personnel the insurance company could likely find and identify the killer, even if he at first escaped detection. The offender would then be held responsible to the insurance company to reimburse the company for the death benefit it had paid. If the family of the victim could establish that their monetary loss was greater than the insurance death benefit, a matter subject to free enterprise dispute resolution by mediation and arbitration, the offender would have to pay monetary compensation to the victim’s family in addition to the obligation to reimburse the insurance company in the amount of the death benefit.

The knowledge of substantial life insurance coverage on an individual could work as a deterrent to premeditated murders. The offender would have to pay as much restitution as he could, and that could take the rest of his own life. In effect, commission of a premeditated murder would amount to intentional economic suicide for the murderer.

Dispute resolution in state courts

Suppose a small community of people wanted a way to resolve disputes among them, and that one of their number proposed to act as arbitrator of all disputes, including disputes involving himself. That was a rhetorical question posed by Professor Hans-Herman Hoppe. ⁶¹ His answer: no one in his right mind would agree to that, but that is the situation in the United States and in other countries. ⁶²

The state enforces a legal monopoly in resolution of all disputes involving the state, including claims of individuals against the state, and more dangerously for human freedom, claims of the state against individuals.

NOTE:            Except as otherwise indicated in the remainder of this chapter, use of the word “state” in connection with courts means the courts of the United States, or the courts of one of the several states, such as California, or both federal and individual state courts.

In contemporary American society, in the second decade of the 21st century, claims of individuals and businesses against each other may be submitted either to proprietary, free enterprise dispute resolution services, or to courts of the state. There is no state monopoly of adjudication of such private claims. However, for reasons of self interest, many people use courts of the state to press their claims against others. Almost every claim of a plaintiff against an insured individual or a wealthy individual or a company will be initiated in courts of the state. There, the plaintiff is almost certain to extract a settlement even in cases that are totally lacking in merit, called nuisance settlements. The one paying to settle such a claim does so to rid himself of the drain on time, energy, and money in contesting the claim. If the case does not settle without trial, then the odds are that plaintiff will be awarded a money judgment in case of a trial by jury. Such claims are invariably contested in a jury trial because experience has shown juries are more likely than a judge to make a large financial award. Three examples will suffice for purposes of this chapter.

McDonald’s hot coffee case and impact of such results on defendants

A 79-year old woman suffered third-degree burns in her pelvic region when she accidentally spilled hot coffee in her lap after purchasing it from a McDonald’s restaurant. At the time she was a passenger in her son’s car. She was holding the coffee cup between her knees while adding cream and sugar. The entire cup of hot coffee spilled into her lap when the car came to an unexpected stop. A jury in New Mexico state court awarded her $160,000 for medical expenses and as compensatory damages and added another $2,600,000 to the award as punitive damages. The trial judge reduced the total award to $640,000. Plaintiff and McDonald’s later settled for an undisclosed amount. ⁶³

Forum shopping

The term forum shopping describes the practice of some  lawyers in seeking to bring a  claim to the court thought most likely to provide a favorable judgment.

The McDonald’s hot coffee case was notorious in Europe, where such an award in such a case seemed a bizarre product of American justice. Subsequently, two German citizens residing in California sued a German company in a California court for US $5 billion, basing their claim on an alleged agreement between them and the company.

This was a case with Germans on both sides, German citizens suing a German company. [NOTE: It seems self-evident that the plaintiffs sued in America rather than in Germany, in order to maximize their chance of a large pecuniary award.]

In California, the case went to trial by jury, after several years of pretrial preparation. According to an account in The Wall Street Journal, the California jury awarded plaintiffs US $200 million in damages for breach of contract. After defendant filed an appeal the case was settled for US $100 million. The company decided to pay the settlement because of the costs and hazards of a second trial, including the costs of management time in defending the case. ⁶⁴

Class action law suits

Lawyers may aggregate claims of many people against a single defendant in a single “class action” lawsuit, if they can establish that there are facts common to claims of all people included as plaintiffs in the class action lawsuit. If a court permits the case to go forward as a class action lawsuit, everyone identified as a member of the class will be included in the suit, even those who did not ask or agree to be included. To be excluded from the suit, individuals must opt out explicitly, by signing a statement and returning it to the court stating that they choose not to be included. Very few people opt out because the class action plaintiffs’ lawyers notify all concerned that they may be awarded some money, without having to do anything to get it.

Representative of such cases are class actions against a company and its executives after shares of the company have declined sharply in stock market price. ⁶⁵ In such cases class action plaintiffs’ lawyers allege that shareholders were damaged because executives of the company failed to provide timely advance warning of news that could drive down the share price, thereby depriving shareholders of the opportunity to sell before the decline in share price. That claim is entirely fallacious and specious because as soon as a company announced bad news the share price would be driven down by the selling pressure of a large number of shareholders attempting to sell at the same time.

Almost invariably these cases are viewed as shakedowns by defendants, and also by disinterested, impartial observers in the legal profession. But, almost invariably, the defendant company and its executives pay a significant amount in settlement to avoid the hazards of litigation, and a potential jury award as bizarre as that in the McDonald’s hot coffee case. Typically, each plaintiff will receive a few dollars from the settlement, usually less than $100. However, the class action plaintiffs’ lawyers also typically ask for and receive from the court an award of many millions of dollars. It is apparent that many class action lawsuits are initiated by lawyers for their own benefit, and not to benefit the individuals included in the class action.

Private arbitration and mediation

Even relatively uncomplicated litigation with straightforward issues usually entails expenses beyond the means of all but the wealthiest individuals, and the largest companies, to afford.

Resolving disputes in the state’s courts, known as litigation, may take as many as five years, and sometimes more. This lengthy process is due to the rules of litigation that have evolved over centuries in English law and its American counterpart. Litigation expenses, primarily attorneys’ fees, may amount to a fortune—millions of dollars—in cases similar to the nine, contemporary cases described at the end of this chapter.

Such time and expense is due to rules and procedures of litigation, particularly the rules for pretrial preparation that developed in America in and after the 1950s. These rules provide  the more affluent party with the means to obtain victory through a virtual war of attrition that less affluent litigants cannot afford to wage. Being unable to pay the costs of the litigation, the less affluent litigants give up and settle on terms disadvantageous to themselves.

In criminal prosecutions, the high costs of legal defense to an individual or to a relatively small company, may impel the accused to enter into a plea bargain with the prosecution, even though they know they the prosecution is unjust.

Plaintiffs will not be concerned with legal fees if they can find an attorney willing to take their case on a contingent fee basis. A contingent fee is one paid to a plaintiff’s lawyer out of the proceeds of settlement or judgment after trial. Lawyers take cases on a contingent fee basis when they anticipate being able to obtain a large award or settlement from a defendant or the defendant’s insurer. Most auto accident lawsuits are taken by plaintiffs’ lawyers on a contingent fee basis—when the defendant has insurance.

Arbitration and mediation services are an alternative to federal and state courts for resolution of disputes other than disputes involving the state. In the early 21^st century, private dispute resolution organizations (DROs) abound in America and are coming into use in other countries as well. ⁶⁶

Mediation and arbitration are considerably less time consuming and less expensive financially than court litigation. The rules of procedure in arbitration in America are designed to bring disputes to an expeditions and relatively inexpensive conclusion.

Nevertheless, the expense of private dispute revolution could also be considerable, and beyond the financial ability of many people. That problem could be addressed and solved by insurance. Just as there is insurance for medical expenses, there could be insurance for the expenses of free enterprise dispute resolution.

Mediation is the process of attempting to work out a voluntary settlement between the parties. Arbitration is the process that occurs after mediation fails, or if mediation is not attempted. Arbitration is the trial-like consideration and decision by an individual arbitrator or a panel of arbitrators agreed to by the parties to the case. Arbitration may be binding or non-binding, according to the advance agreement of the parties.

Arbitration and mediation services are available in cities throughout America. Two larger services operate nationwide, The American Arbitration Association (AAA) and JAMS (an acronym for Judicial Arbitration and Mediation Services). ⁶⁷

Many DROs offer the services of retired judges with long experience in state and federal courts. Lawyers with court litigation experience also serve as arbitrators and mediators. Some DROs offer mediators expert in psychological counseling, an important factor in mediating divorce cases.

Arbitration and mediation is a rapidly growing industry, because it provides quicker and less costly dispute resolution than state and federal court litigation. AAA was perhaps the first DRO. It operates throughout America. It is organized as a not for profit corporation. JAMS has grown from a small, local service to a large company with offices in 26 American cities and London, England. In California, ADR Services, Inc. in less than 20 years grew from a small, single office in Los Angeles to a company with offices in six California cities, and in Las Vegas, offering the services (in the year 2015) of 150 retired judges and attorneys. ⁶⁸

Arbitrators could be mistaken in their decisions. That human possibility is mitigated by market justice. Market justice is the term used by Andrew Galambos to signify the adverse consequences, in the market, for suppliers of defective goods and services. That consequence is loss of reputation and future loss of business. Arbitrators’ services would be rated by rating agencies and companies. The concept of ratings for goods and services exists already in contemporary America, for example the publication Consumer Reports, Underwriters’ Laboratory product ratings, and the Yelp website established in the 21st century to provide online (i.e., internet) ratings for suppliers of services. The subject of credit and reputation in business and commerce is examined in some detail in chapter 22 above entitled Credit and Reputation.

Andrew Galambos posited that in free enterprise justice, arbitrators could be held  financially responsible for a wrong decision.  Whether free enterprise justice evolves in that way will be determined by experience and practice. An arbitrator would have to agree in advance to be financially liable and responsible for a mistaken decision. Perhaps it would be difficult to find an arbitrator willing to accept such responsibility. However, an arbitrator might be willing to accept such responsibility if he or she could purchase insurance against liability for wrong decisions.

PATHOLOGIES OF CRIMINAL LAW IN THE UNITED STATES

An insider’s view of legalized injustice in the United States

According to Emanuel Tanay, a noted forensic psychiatrist with almost fifty years’ experience in thousands of criminal and civil cases,

“[The U.S. ] legal system is rife with injustice. . . [I]ncompetence, deception, and misguided zeal of prosecutors, police officers and judges . . . is far from rare in the politicized American legal system. . . [I]nnocent people are often accused, convicted, and incarcerated . . . 

“[A] person who is a suspect in a crime will most likely become a defendant. . . [O]nce he or she is a defendant the chances of being convicted of a major crime are high . . . [T]he bigger the crime, the greater the likelihood the defendant will be convicted, even if innocent. . . Among defendants sentenced to death in the United States since 1973, at least 2.3% of them—and possibly even more—were falsely convicted. . . Time and again I have encountered cases where people were found guilty of murder in spite of overwhelming evidence they were innocent. . . 

“Once accused [a person] is always considered guilty in the court of public opinion. It has therefore become my practice to advise defendants acquitted of a crime, particularly murder, to leave town and change their name. Those who remain in their hometown will often sooner or later be arrested for some other reason . . .” ⁶⁹

Punishment-based injustice 

Before and after the War for American Independence (1776-1781) the residents of America continued the punishment-based system of criminal law that had been the law of England for the preceding seven centuries.

The title in the heading above uses the word pathologies because political laws and the state through which they are created and administered are a system in which there is little or no justice, but rather a system that creates injustice and imposes that injustice upon everybody.

The state justice system consists of the legislature that enacts laws, administrative agencies with power to makes rules that have the coercive force of law, police who enforce those laws, prosecutors who prosecute people accused of violating laws, judges and juries that decide guilt or innocence of the accused and their punishment if convicted, and prisons that incarcerate those convicted by judges and juries.

Injustice begins with legislation

Americans will suffer from all-pervasive injustice as long as there is an all-powerful state. It is the legislature of the state that creates injustice with its ever-growing multitude of often arcane and unfathomable laws.

A maxim in law states that ignorance of the law is no excuse. Andrew Galambos commented that everybody is ignorant of the law, including judges. He noted that all appellate courts have an uneven number of judges, for the practical reason of avoiding deadlock in which the judges are evenly divided on the meaning of the law in the case before them. A unanimous decision by the nine judges of the United States Supreme Court is a rarity. Some of the most momentous decisions of the  Supreme Court are decided by a vote of five to four. For example, in effect, the winner of the presidential election in the year 2000 was decided by a vote of 5 to 4 in the U.S. Supreme Court. ⁷⁰

How can anyone not be ignorant of most of the laws of the United States and its constituent states? They are legion in number. In the federal system alone there were in the early 21st century at least 4,500 laws with criminal sanctions, a number that grows continually. There are also the voluminous regulations of federal agencies that administer various laws. As of May 2013 these regulations, embodied in The Code of Federal Regulations, comprised 175,000 pages. ⁷¹

Administrative rules and regulations can have as much force and effect as the laws of Congress. There can be criminal penalties for violating such rules and regulations.

For example, the U. S. Food and Drug Administration (FDA) has rules concerning physicians’ prescription of opiate-based pain medication for relief of severe and chronic pain. Under those rules a physician whom the FDA contends is prescribing such medication to drug addicts can be charged with being a drug dealer and prosecuted by the U.S. Department of Justice under federal laws prohibiting possession and sale of narcotic drugs. NOTE: Nothing in the laws of Congress authorizes such a prosecution; rather the prosecution is based on the FDA regulations interpreting federal statutory law. This is an example of administrative regulations with the force of statutory law enacted by Congress. If convicted of the charges the physician will receive a lengthy prison sentence and his medical practice and personal finances will be ruined. This dire consequence to physicians may be based on nothing more than the fact that a few such addicts were among the people asking the physician for pain relief medication and receiving a prescription. Guilt or innocence of the physician on charges of being a drug dealer, under those circumstances, hinges on a jury’s decision whether the physician should have known who was an addict and who was a genuine pain relief patient. ⁷²

Legislation is seldom introduced on the initiative of legislators. It is introduced in response to the activities of organized pressure groups. ⁷³ Without documenting this at length, suffice it to say that the history of legislation at federal and state levels is filled with examples. Some are mentioned below. Perhaps the earliest example is the fugitive slave laws. In order to procure ratification of the Constitution by legislatures in six of the thirteen states where slavery was most prevalent, the authors of the Constitution included in it a requirement to return fugitive slaves to the slaveholders in other states from which they had escaped.

Early in American history, high tariffs, that is taxes, on imported goods, were enacted at the behest of American manufacturers in the manufacturing states of the north. States in the south were primarily agricultural, with very little manufacturing. Federal tariffs bore heavily on the south and benefited businesses in the north. While tariffs were the tax that financed the federal government, the motivation for high tariffs was protection of northern manufacturers from foreign competition. During the administration of President Andrew Jackson (1829-1837), the high tariffs with their obvious protectionist function for northern manufacturers impelled the legislature of South Carolina to enact a law of that state nullifying the federal tariff in South Carolina. That developed into a political and constitutional crisis.

President Jackson threatened the use of force against South Carolina to end its defiance. Negotiations in Congress led to a compromise with South Carolina. The crisis was ended—temporarily—but southern resentment of high tariffs did not end. The issue of high, protectionist tariffs remained divisive. It was a factor in the later decision of southern states to secede from the United States in 1861 and to wage war to uphold secession. ⁷⁴

The War on Drugs

If possession and sale of drugs had never been made illegal by legislators in the United States, many of the injustices discussed  herein would not have occurred.

Prohibition of narcotic drugs (drugs herein) by the United States dates back to 1914. In 1970 Congress enacted, and President Nixon signed the Comprehensive Drug Abuse Prevention and Control Act of 1970. In 1971 President Nixon declared drug abuse to be public enemy number one.

Subsequent federal legislation and regulatory actions have intensified the political war on drugs. These legislative and regulatory initiatives have resulted in a high rate of homicides from internecine drug gang turf wars in the inner cities, suburbs and even rural areas of the U.S.; police shooting of individuals fleeing the police out of fear of arrest for drug possession; seizure of assets of persons never accused of violation of any law; prosecution and imprisonment of physicians for prescribing opiate-based pain relief medication; and imprisonment of non-violent drug law offenders for decades or even for life. These consequences are discussed in this chapter, the chapter entitled Security, and in the blog post on this website entitled “Legally sanctioned highway robbery and other thefts by law enforcement.” ⁷⁵

Eradicating the illicit drug trade was the objective of the 1970 drug legislation and subsequent legislation and regulatory initiatives. Judging by the size of the illicit drug trade in the early 21st century, the attempt to enforce drug prohibition since 1970 has been a failure. According to sources cited in Wikipedia, analysts estimate that wholesale earnings from illicit drug sales in the U.S. range from $13 billion to $49 billion annually. ⁷⁶

Taking into account the cost of enforcement activities together with the cost of incarceration of persons for violation of the drug laws, the cost of attempting to suppress the illicit drug trade exceeds the wholesale earnings from illicit drug sales.

Harvard law professor Jeffrey A. Miron reported that as of 2003 “government expenditures for [drug] prohibition enforcement . . . exceeded $33 billion annually, with law enforcement authorities making more than 1.5 million arrests per year on drug-related charges. In the United States there [were then (in 2003)] more than 318,000 persons behind bars for violation of drug prohibition, more than the number of persons incarcerated for all crimes in the United Kingdom, France, Germany, Italy, and Spain combined.” [Emphasis added] ⁷⁷

NOTE: The combined population of those five European nations early in the second decade of the 21^st century is approximately the same as that of the United States. ⁷⁸

Professor Miron identifies the following negative and adverse consequences of criminalizing drug possession and sale: increased violence, reduced health for drug users, transfers to criminals, and diminished civil liberties. ⁷⁹

The U.S. war on drugs has an adverse impact on innocent people in Mexico, Central America, and Colombia, who are killed in the internecine warfare between large-scale organized drug gangs. The government of Colombia has been at war with drug gangs in that country ever since the U.S. drug trade became so lucrative after 1970. According to analysts cited in Wikipedia, the death toll of the Mexican Drug wars had reached 120,000 by the year 2013. ⁸⁰

Legislators have legal immunity from responsibility for injustice caused by the laws they enact. Legislators may with impunity enact laws that wreak havoc among the people, yet legislators are never called to account for their actions, except for the remote possibility that unjust legislation may cause legislators to lose a bid for reelection.

Law enforcement as the instrumentality of injustice

Police call themselves “law enforcement.” Someone who chooses to be a police officer has deliberately chosen to enforce all political laws. In doing so, he or she has unwittingly chosen to be an instrumentality of injustice—not in everything he or she does, but in some of it, and perhaps in most of it.

In enforcement of the War on Drugs police officers regularly engage in outright robbery of citizens who are not guilty of or charged with violation of the drug laws or any other laws. These police robberies are authorized and sanctioned by federal and state legislation. ⁸¹

Police are irresponsible for their misdeeds. Only in the most blatant cases of abuses of their power are police held legally accountable for harm inflicted during arrest or incarceration of a person they apprehend.

Prosecutors’ power to inflict cruel punishment

The most powerful agents of injustice are public prosecutors. It is they who initiate prosecution of cases brought to them by police. Prosecutors have the discretionary power to decide whether to prosecute and what charges to bring against an accused. Legislators have given prosecutors the power to ruin the lives of those they accuse. Seldom do prosecutors exercise their discretion not to prosecute someone who has been charged with an offense that is purely malum prohibitum, in that the accused harmed no one else, or in the prosecution of someone for a malum in se offense–a case where someone has suffered physical injury or death–where evidence of the guilt of an accused is is tenuous, questionable, or even non-existent except for a false confession or false eyewitness identification induced by deceit and intimidation.

It is not rare that a wrongful conviction is procured by misconduct of  prosecutors. However, prosecutors are never held responsible to the victims of their misconduct. In an extreme case, a prosecutor who has been disbarred for his misconduct conceivably could have legal liability to the injured person, but it is the prosecutor’s employer, the state, that would be held responsible to pay damages to the injured person. Thus injustice magnifies itself, as taxpayers are the ones who pay for the state’s liabilities.

Plea bargaining—a highly coercive process

From 1970 to 2010 the population of the United States increased by fifty percent, but the number of people imprisoned increased by more than five hundred percent. This development is attributable in large part to legislative increases in the length of prison sentences and the incentives for plea bargains.

About 95 percent of criminal convictions in the United States are obtained through plea bargaining, which is often a highly coercive process. A plea bargain affords the accused the opportunity to reduce the amount of prison time to be served if convicted. There are draconian punishments for many non-violent crimes in the United States; for example dealing in even small amounts of prohibited drugs could result in decades or even a lifetime of imprisonment.

The more counts, that is individual offenses alleged in a criminal accusation the longer the potential prison sentence. For example, someone charged with dealing in prohibited drugs, such as cocaine, could be charged with a separate offense for as many sales as the prosecutor might be able to identify. Under the law the punishment for even one sale could be several years in prison. The prosecutor could charge multiple sales for which the potential total punishment could be a lifetime in prison. The prosecutor then could offer a plea bargain in which the accused would give up the right to jury trial in exchange for pleading guilty to offenses for which imprisonment would be for twenty-five years rather than for life.

Prosecutors generally have far more cases than they could possibly try by jury. In order to dispose of cases by plea bargain rather than by trial, prosecutors have an incentive to overcharge the accused—in effect to “throw the book” at an accused—by charging the maximum number or even more than the maximum number of offenses arising out of a single transaction or a single course of conduct. For the accused, the incentive would be overwhelming to enter into a plea bargain in order to limit prison time as much as is feasible.

Judges and Juries

It is judges and juries who convict defendants. They are totally irresponsible for their actions. Judges and juries can send an innocent person to his death or into long-term imprisonment. Even if the convicted person is later exonerated, judges and juries have no legal liability or responsibility to make restitution to the exonerated person for all the  suffering, injury, and losses caused by the wrongful conviction.

Prisons: The U.S. Gulag Archipelago

Prisons are an affront to human freedom, and are unnecessary to protect life and property. Prisons are also an instrument of injustice in that incarceration prevents an offender from making restitution for his offense. He is incapable of making restitution while incarcerated. After release his status as a convicted offender greatly hinders his ability to earn a living, much less earn a surplus to pay restitution.

The great Russian author, dissident, and one-time political prisoner, Nobel Laureate Alexander Solzhenitsyn, in his most famous literary work, described the prisons and prison camps of his native Russia as an archipelago within Russian society–prison islands hidden from the view of the rest of society.  ⁸²

The prisons of the United States are an also an archipelago of prison “islands.” In a nation with 5% of the world’s population, the U.S. prison archipelago holds 23% of the world’s prisoners. Prisoners are isolated from society, held behind walls and barbed wire fences, deprived of privacy within the prison and limited in the contact they may have with family and friends on the outside. It has been estimated that over half of all prisoners in the United States were convicted for non-violent offenses. ⁸³

Prisoners in U.S. prisons are not allowed to work to earn money to pay restitution. There is no provision in prison for inmates to make restitution by means of earning any income, much less income commensurate with the compensation they could earn outside prison.

Incarceration in the U.S. is costly, estimated at about $50,000 per prisoner each year. This cost is a further injustice because it is borne by the people whose taxes pay for the prisons.

Prisoners are usually denied the opportunity to pursue vocational training or higher education while in prison, opportunities that would enhance their ability to make restitution for their offenses.

COMMENT ON THE SUPPOSED NECESSITY OF PRISONS: At this point thoughtful readers are almost certain to think that prisons must be necessary to protect society from dangerous people. This overlooks the underlying and ultimate cause of the offenses of most of those who have committed violent crimes.

• Vices are not crimes. Laws of the United States that criminalize sale and possession of narcotic drugs have created an illicit and lucrative business that engenders violent turf wars between urban drug gangs within the inner cities of America and even in suburban and rural areas. The illegal drug trade attracts criminals from Mexico and Central America who become active in plying their trade within the United States, where the high standard of living created by free enterprise creates the wealth that enables some Americans to pay the high prices that fuel the illicit drug trade. Poor people buy narcotic drugs. However, it has been observed that the inner city drug trade is most brisk when monthly welfare checks are received in the slums of the inner cities. Some crimes are committed by drug addicts to steal the money needed to maintain their addiction. Narcotic drugs are cheap to manufacture when it is not illegal to do so. The incentive to steal to fuel a drug addiction would be reduced greatly by low prices when possession and sale of drugs are not illegal.
• Prisons in the U.S. are schools for crime. Prisoners have no useful work to do and little or no opportunity to obtain vocational training or to continue their schooling. Prisoners’ rage about their imprisonment and the lack of useful work in prison impel released prisoners to an antagonistic view of the rest of the society that imprisoned them. There could be no better means than prison for stimulating repetition of crime by released prisoners.
• The punishment-based system of justice does not deter crime. Crime does not pay is a false statement. A restitution-based system of justice would deter most criminal activity because under a restitution-based system of justice, crime would not pay and in fact would be very costly to the criminal.
• Those few pathological criminals who could not be deterred could be isolated from society by a non-coercive modern version of the banishment and exile in societies that lived under restitution-based customary law. Pathological offenders would have the choice of perishing due to unavailability of credit to buy the necessities of life, or voluntary exile to a community of similar people.

Legislatures and criminal law

The first criminal code of the United States contained only twenty-two offenses punishable as crimes. ⁸⁴ By 2008 there were over 4,450 federal crimes. Congress creates about fifty new federal crimes each year. ⁸⁵ According to California Governor Jerry Brown, in the year 2015, “California’s criminal code [had] 5,000 provisions . . . ‘covering almost every conceivable form of human misbehavior.’” ⁸⁶

Most, if not all, federal crimes are punishable as felonies. Even the least punitive federal crimes may provide for long prison sentences. Non-violent offenders may be sentenced to life imprisonment under federal drug laws.

In the United States and other political democracies around the world, as Frédéric Bastiat observed, the legislators look upon people as raw material to be formed into social combinations. To them the relationship between persons andthe legislator appears to be the same as the relationship between the clay and the potter, between the gardener and his trees. They look upon society as an artificial creation of the legislator’s genius. ⁸⁷

According to a report in the New York Times, 27-year-old Stephanie George was sentenced to life imprisonment for possession of a half-kilogram of cocaine. ⁸⁸ Federal Judge Roger Vinson had no choice under federal law but to impose a life sentence, which he found unwarranted. The judge said to Ms. George at time of sentencing, “Even though you have been involved in drugs and drug dealing, your role has basically been as a girlfriend and bag holder and money holder but not actively involved in the drug dealing, so certainly in my judgment it does not warrant a life sentence.”

The New York Times report continues, “Ms. George was tried with other defendants, including an ex-boyfriend, Michael Dickey. Dickey led the police to Ms. George’s residence and showed them where the drugs were stored in a lockbox in the attic. At the trial, other defendants said she was present during drug transactions conducted by Mr. Dickey and other dealers she dated, and sometimes delivered cash or crack for her boyfriends. Ms. George denied those accusations . . . [At the time of sentencing Ms. George was a single woman supporting her three young children.]

“Whatever the truth of the testimony against her, it certainly benefited the other defendants. Providing evidence to the prosecution is one of the few ways to avoid a mandatory sentence. Because the government formally credited the other defendants with ‘substantial assistance,’ their sentences were all reduced to less than 15 years. Even though Mr. Dickey was the leader of the enterprise and had a much longer criminal record than Ms. George, he was freed [after serving ten years of his sentence].” ⁸⁹

NOTE: Under the CTLR definition of crime, it is “a successful, intentional interference with the property of another. In other words, it is an act of successful coercion.”

QUESTION: How, if at all, did the acts Ms. George was convicted for amount to interference with the property of any other person?      

Legislation is seldom initiated by legislators. It is introduced in response to the activities of organized pressure groups. Without documenting this at length, suffice it to say that the history of legislation at federal and state levels is filled with examples.

Prohibition of alcoholic beverages in the U.S. became law in the early 20^th century due to the lobbying of an organization named The Anti-Saloon League. Its chairman conceived and drafted the Volstead Act, the legislation implementing prohibition, which was named for Andrew Volstead, Chairman of the Judiciary Committee of the U.S. House of Representatives. ⁹⁰

NOTE: There are unfavorable comments herein about police, prosecutors, judges and juries, and prison officials and guards. Those comments derive from the facts of specific cases. For example, some prosecutors engage in prosecutorial misconduct, which is not a rarity, but on the other hand is not something that occurs in most criminal prosecutions. Comments about specific cases are given here as examples of the pernicious effect of punishment-based justice on the actions of some of those who administer it. However, there is no intention to blame all police, prosecutors, judges, and prison officials and guards for the atrocious behavior of some among them. There are good and decent people in all those occupations. For the outstanding recognition that such decent people may be found in the worst of circumstances, readers are referred to the memorable book of Auschwitz survivor Dr. Viktor Frankl, Man’s Search for Meaning (1946) ⁹¹

How could a police officer or a prosecutor be able to inflict pain and misery on other human beings who had done nothing to harm him or anyone else? F. A. Hayek offers an insightful explanation in his remarkable book, The Road to Serfdom. There Hayek observes that power over other people, wielded in an unjust political regime, leads individuals in power to behave cruelly because cruel behavior is justified and supported by other members of the group enforcing unjust laws, and is required to achieve the coercive goals of the regime. ⁹²

In the United States the personnel of state justice are virtually impelled by the punishment-based laws of the land, and the bureaucratic customs of the institutions in which they work, to commit injustice after injustice against those ensnared in the enormous web of malum prohibitum laws that burden, entrap, and oppress Americans.

Police

Police officers enforce political laws. In enforcing the law of the state, police officers sometimes attack persons and property and even engage in outright robberies—robberies that are authorized and fostered by law. See the post on the blog portion of CTLR entitled “Legally sanctioned highway robbery and other thefts by law enforcement,” November 30, 2014. ⁹³

Police killings of citizens who are innocent of crime are a perennial problem. See, for example, the killing of 61-year old Donald Scott in his Malibu, California ranch home by Los Angeles County Deputy Sheriffs in 1992. The Ventura County District Attorney investigated the incident and concluded that a Los Angeles County Deputy Sheriff, who was one of three who shot Mr. Scott, lacked probable cause to believe Mr. Scott was growing marijuana on his property as alleged in the affidavit for the search warrant. The District Attorney found that the search warrant was procured by fraud, and that a principal motivation of the Deputy Sheriff was to confiscate Mr. Scott’s valuable property in case he was in fact growing marijuana on the premises. A thorough search of the property after the killing of Mr. Scott found no marijuana on his property. ⁹⁴

In a notable case in Cincinnati, Ohio in July, 2015, a police officer was indicted for murder after shooting to death a motorist in an encounter that began with a traffic stop because the motorist’s car had no rear-mounted vehicle license. ⁹⁵

Police are notorious for lying about the reasons they give for searches, in order to justify after the fact a search in which there was no probable cause for the search. Probable cause to believe a crime has been committed is a requirement of the law for issuance of a search warrant or for a search without a warrant.

The following is an incident known to a lawyer friend of the author of CTLR. It is not apocryphal. The author has no citation to a publication reporting this event, but believes it to be a compelling example of police lies about probable cause to search. The fact of such police lying is legendary among criminal defense lawyers. A police officer in Los Angeles stopped a motorist. The officer testified in court that he asked the motorist if he (the motorist) minded if the officer looked into the trunk of his car; and that the motorist said sure, go right ahead. Upon opening the trunk the police officer found an enormous amount of an illicit, controlled substance, methamphetamine. Apparently, the police officer in this case was so accustomed to getting away with lying about probable cause that he expected this absurd testimony to be credible and unchallenged by defense counsel.

There is another factor of significance about this story, which is actually typical of many cases that have been reported in the media or in the decisions of appellate courts. That is, the political laws making illegal the possession and sale of drugs provide incentive for police to search cars of motorists stopped for minor violations of traffic laws—and to make those searches when there is no probable cause to believe the motorist has illicit drugs in his vehicle. Police officers have nothing to lose by making a search without probable cause. They could find contraband and thereby justify their activities as agents of law enforcement.

Furthermore, police sometimes make traffic stops when they have not observed infractions that could be cited under the traffic laws. In one of the cases reported in a New Yorker article on highway robbery by police, a sheriff’s deputy in a small Texas town said he pulled over motorist James Morrow for “driving too close to the white line.” The police officer confiscated $3,900 in cash he found in a search of the motorist’s car. The policeman took the cash on the ground that it was the product of illegal drug dealing. Mr. Morrow was not charged with drug dealing or with any crime, but the police kept the money even though Mr. Morrow offered to show his bank withdrawal record as proof of the reason he gave for carrying the cash—that he was on his way to Houston, Texas where he expected to use the cash to pay for dental work. The police took Mr. Morrow to jail. They confiscated his mobile phone and his car.  Morrow was not charged with any criminal offense. The next morning the police put him out on the streets. He had to ask someone at a nearby Wal-Mart store to use the other’s mobile phone to call his mother to come and pick him up.  ⁹⁶

Arrest and jail for being argumentative

A motorist can be arrested for being argumentative with a police officer during a traffic stop for a minor infraction, as occurred in the case of 28-year old Sandra Bland, in July 2015. She was a resident of Naperville, Illinois who drove her car to Texas to begin a new job at her alma mater, Prairie View A&M University

On July 10, 2015, Ms. Bland was arrested by a Texas State Trooper after she was stopped for failure to signal a lane change. According to an account in the New York Times, a camera mounted on the dash board of the police car recorded the following.

The video showed the officer pulling Ms. Bland over and their encounter escalating into a physical altercation in which he threatened her with a stun gun. “I will light you up,” the trooper said, pointing the stun gun at her.

The confrontation between Ms. Bland and the trooper, Brian T. Encinia, escalated after she refused his order to put out a cigarette. The video showed Trooper Encinia standing outside the driver’s door and explaining to Ms. Bland that she was being written up for failing to signal a lane change. “You seem very irritated,” he said.

“I am, I really am,” she said. She said she had pulled over to get out of his way and was now getting stopped and written up because of it.

“You mind putting out your cigarette?” he asked testily.

“I’m in my own car. I don’t have to put out my cigarette,” she said.

When he ordered her out of the car, she refused. “I’m going to yank you out,” Trooper Encinia shouted.

Before long, Ms. Bland was outside the car shouting insults and obscenities, and the trooper had her in handcuffs. In part of the encounter that occurred out of the camera’s view, a scuffle could be heard, and Ms. Bland indicated that she was on the ground. “You just slammed me, knocked my head into the ground,” she said.

Ms. Bland was taken to jail where three days later she was found dead by hanging. ⁹⁷

NOTE: Under the CTLR definition of crime, it is “a successful, intentional interference with the property of another. In other words, it is an act of successful coercion.”

QUESTIONS: Did Sandra Bland coerce anyone? No, she did not. She was stopped for failure to signal a lane change, then arrested for being argumentative with a policeman and failing to be submissive to his orders. Did failure to signal a lane change interfere with the property of anyone? No, it did not. Did arguing with the policeman or refusal to submit to his orders interfere with anyone’s property? No, it did not. Who did the coercing in this case? Only the policeman.

Comment: 

The Sandra Bland incident is here to make a point. It is NOT that police do this often. They do not. It is that an individual policeman can do it any time he wants to. 

That possibility is in and of itself an injustice as defined in this chapter. It is a major interference with the property of the driver, namely his or her freedom. 

To what purpose? To what end? Certainly the issue in the Sandra Bland case was not traffic safety.

The power that a police officer has over an individual carries with it always the potential for injustice. All it takes is a police officer with the wrong temperament and a short temper. 

Suppose that Sandra Bland had been driving on a private road company’s road, and instead of a police officer there was a road company security officer observing her driving. In that case, could such a thing as the Sandra Bland case happen? It could not. 

Imagine such an incident being published about that road on an internet rating website. The security officer would be fired immediately, and the road company would apologize to the motorist and would publish its apology. 

Private security road patrol agents would not carry handcuffs and a gun. They would never have occasion to use them. 

If a motorist on a road company’s road was driving unsafely there would be ways to stop the motorist and get him off the road—without yanking him out of a car, threatening to burn him with a taser, throwing him to the ground, hand cuffing him, and taking him to a jail. 

The unsafe motorist would be stopped by the road company in a manner safe to all, and would then be escorted off the road and would be told his business was no longer wanted. That is all. 

Even the American Civil Liberties Union (ACLU) has said on the internet: just be docile and passive if you get pulled over by the police, no matter what, then you won’t have a problem.  ⁹⁸

Passivity and docility is a way of coping with someone that can hurt you if you are argumentative. In Nazi Germany or communist Russia it was prudent to be docile and passive when confronted by police.

That is what the United States has come to when even the ACLU warns the public to be passive and docile when a policeman pulls you over, if you want to be sure to emerge from the encounter unharmed.

Police officers enforce political laws. They do not protect people. In enforcing the law of the state, police officers often attack persons and property and even engage in outright robbery and murder. This is illustrated by the perennial killing of unarmed citizens by police officers. Some examples will be examined further on in this chapter.

Americans will suffer from all-pervasive injustice as long as there is an all-powerful state. It is the legislature of the state that creates injustice with its ever-growing multitude of often arcane laws. Police call themselves generically “law enforcement.” Someone who chooses to be a police officer has deliberately chosen to enforce all political laws. In doing so, he or she has unwittingly chosen to be an instrumentality of injustice—not in everything he or she does, but in some of it, and perhaps in most of it.

In enforcement of the War on Drugs police officers regularly engage in outright robbery of citizens who are not guilty of or charged with violation of the drug laws or any other laws. These police robberies are authorized and sanctioned by federal and state legislation. ⁹⁹

Driving on a highway in the U.S. is one of the most dangerous things one can do—but not solely because of the hazards of traffic. Another big danger is from the police. They have unbridled and unlimited power to stop a motorist for a traffic violation most people would not know was a violation. That could lead to the motorist’s arrest, jailing, and even death at the hands of the police.

Jeffrey Tucker is a scholar, publisher and editor of free market ideas and publications. At age 51 he was arrested, handcuffed and jailed. The arrest started with a highway stop by police for violation of a traffic law of which he was unaware—failure to move out of the right lane of a highway adjacent to a police car parked on the shoulder of the road. After the stop, Tucker was arrested for driving with a suspended driver’s license. His license had been reinstated after a suspension for late payment of a parking ticket. When he went to pay for the parking ticket he was given a document entitled “Notice of Reinstatement of Driver’s License,” stamped with an official seal.

The police officer who stopped Tucker refused to respect and honor that document. He arrested Tucker, handcuffed him and took him to jail. Apparently, before the Notice of Reinstatement was issued, Tucker’s license suspension became a record the police could check when they stopped him.

At the jail he was strip searched and placed behind bars in a cell. While there, the police brought in a Hispanic man who had been arrested for failure to appear on a court date for a traffic violation. The police searched his pockets, found small flakes of marijuana, and then charged him with a felony–bringing illegal substances into a correctional facility. Once this happened, the officer who found the marijuana shouted to everyone with great glee: “we’ve got a felon!!” The police officers present celebrated this with hilarity. ¹⁰⁰

Tucker was released at the end of one day in jail. The Hispanic man Tucker saw in jail will not be so fortunate. He likely will be convicted of the felony described in the preceding paragraph and incarcerated for a number of years.

In April 2015, a policeman in South Carolina shot and killed a motorist he had stopped for having a broken tail light. The motorist ran away from the policeman, and was shot in the back eight times. The incident was filmed on the smart phone of a passerby. Apparently, the motorist feared he would be arrested for being delinquent in child support payments. ¹⁰¹

Prosecutor misconduct

Prosecutors have been known to use a variety of ways to convict a person they knew or should have known they could not convict without false evidence. Examples include the following.

• Suppression of or failure to disclose exculpatory evidence
• Suborning perjury
• Cooperating with police intimidation to coerce a false confession
• Cooperating with police to procure a false identification of an accused as the perpetrator of a crime
• Repeated use of jailhouse informants’ false testimony

In the year 2006,  three members of the Duke University lacrosse team were prosecuted for rape. The prosecutor deliberately withheld exculpatory DNA evidence. A girlfriend of the accuser knew of the circumstances in which the alleged rape occurred and offered testimony indicating the accuser was fabricating the charges. Eventually charges against all three defendants were dismissed, the prosecutor was taken off the case, and later disbarred. ¹⁰²

Question:         Suppose there was no prosecutor, but instead restitution-based justice in which the alleged victim made a claim. How would this case have developed?

Answer:           The accuser could go to arbitration. The accused would assert their innocence and could ask for a DNA test. If the accuser refused, that would be the end of the case. If she allowed the test, that also would have been the end of the case. Instead, the accused were subjected to an ordeal.

In Long Beach, California, the prosecutor used the false testimony of a jailhouse informant, Ed Fink, to procure a murder conviction. The conviction was set aside after this was discovered. The defendant served 24 years in prison before being released. He sued the City of Long Beach for damages on the ground that the City knew of the prosecutor’s practice of using false testimony by a jailhouse informant. The city agreed to pay nearly $8 million to settle the case. ¹⁰³

Even the settlement payment was unjust, that is unjust in its total inadequacy to make restitution for 24 years of wrongful imprisonment. Who among the readers of this chapter, who among the entire population of the United States would willingly go to prison for 24 years in exchange for being paid $8 million after release?

In Los Angeles, a jailhouse informant, Leslie V. White, admitted that he had falsely testified to the jailhouse confessions of a number of men who were convicted on the basis of his false testimony. White wrote a letter, published in the Los Angeles Times, stating that prosecutors knew that there was false testimony by jailhouse informants in many cases. ¹⁰⁴

Question:         In the cases of the two jailhouse informants noted above, suppose there was a restitution-based system of justice. Would there ever be jailhouse informants?

Answer:           There would be no jails, no jailers, no jailhouse police, no jailhouse informants and no public prosecutors to induce informants to lie about a supposed confession in return for a promise of leniency in their own case.

In a case in Florida in the 1930s, four young black men were accused of murder. They were convicted on the basis of confessions coerced by ceaseless questioning and sleep deprivation over a period of five days. For five days and nights they refused to confess. A prosecuting attorney came to the jail where the accused were held and instructed the jailers as to the content of the confession that he desired. On the fifth day the accused were kept up all night and into the next morning until relentless questioning finally broke the will of three of the defendants, who confessed to the murder. The fourth maintained his innocence. The prosecutor virtually dictated the terms of a confession by the three who did confess. Their confession was taken down in writing by a stenographer. The confessions implicated the fourth defendant in the murder. That was the only evidence of guilt presented at trial. All of the accused were sentenced to death. On appeal by all four defendants, counsel for the accused argued to the Florida Supreme Court that the confessions should not be considered because they were coerced. The judgment of guilt was affirmed by the Supreme Court of Florida. The U.S. Supreme reversed that ruling, holding that the prosecutor’s use of confessions so procured was a violation of defendants’ rights to due process of law under the U.S. Constitution. ¹⁰⁵

Question:         How would the accused in this case fare in a restitution-based system of justice?

Answer:           There would have been no arrest and no confessions. The police in this case had no evidence pointing to any culprit in the murder. Apparently the police arrested four young black men because they were in the vicinity and were black. The prosecution had no evidence of the guilt of the accused. That is why the police and the prosecutor coerced confessions.

In 1982 in Buffalo, New York, a man was charged with rape of a victim who said the assailant seized her from behind and forced her to the ground. A suspect was arrested four months later. The victim was uncertain about identifying him as the assailant, but the police pressured the victim constantly until she identified the suspect as the perpetrator of the rape. That was the only evidence offered by the prosecutor, who heard the victim tell him and the court about the constant pressure of the police to identify the accused as the perpetrator when initially she was not certain about identifying him. The accused was convicted and spent sixteen years in prison before he was exonerated by DNA evidence. ¹⁰⁶

Question:         How would the accused in this case fare in a restitution-based system of justice?

Answer:           The victim could have sought restitution if she knew who her assailant was. She did not. The police and prosecutor had no evidence of the guilt of the accused. They picked someone at random to accuse. The police and prosecutor harassed the victim until she made a positive identification of the accused, and even then she was not certain.

Comment:       In all four of the cases mentioned immediately above, the injustice was caused by the existence of a punishment-based system of justice which gives enormous power to police and prosecutors. Police like to solve crimes and prosecutors like to get convictions. Sometimes innocent people are arrested and wrongly convicted because police and prosecutors want someone convicted to show that they are doing their job.

These four are not rare cases. There are so many cases of wrongful conviction that several not-for-profit organizations have come into existence to work for exoneration of the wrongly convicted. These organizations have exonerated people imprisoned wrongfully for as long as three decades. ¹⁰⁷ Despite working with limited resources, in aggregate these organizations have established the innocence of hundreds of wrongfully convicted people.

Judges

Judges sometimes become aware of prosecutor misconduct during the course of a trial. Judges have the power to intervene to prevent a prosecutor’s misconduct from causing an injustice. There are cases where a judge has done this when they see a prosecutor’s misconduct in court, or when a defense attorney calls to the attention of the judge some act or acts of misconduct by a prosecutor during a trial.

Broadcom Corporation was started by two men, Henry Samueli and Henry Nicholas, to engage in manufacture of hardware and semiconductor chips in the wireless and broadband communication industry. The U.S. Department of Justice launched a prosecution of the two men and their companies for alleged violation of U.S. law dealing with companies whose shares are traded on the stock market.

The case was tried before Judge Cormac J. Carney in federal court in Los Angeles. Judge Carney dismissed the prosecution case against both defendants, ruling that “. . . prosecutors had intimidated witnesses and made ‘a mockery of justice,’ [and that] . . . he didn’t believe Henry Samueli had committed a crime.” ¹⁰⁸

Comment:       Judge Carney’s action drew nationwide attention because it was so unusual. The prosecutors in the Broadcom case suffered no sanction for their misconduct, other than loss of reputation.

Question:         How would this case be resolved in a restitution-based system of justice?

Answer:           The intimidation of witnesses in this case was by the prosecutors’ threats to employees of Broadcom that they, too, would be prosecuted if they did not cooperate with the prosecution by lying about the activities of Mr. Samueli and Mr. Nicholas. In restitution-based justice, someone would have to allege that he was injured by the actions of Mr. Samueli and Mr. Nicholas. The claim would have been submitted to arbitration. There would have been no prosecutor, no intimidation of witnesses and no threats of prison for Mr. Samueli and Mr. Nicholas.

Thomas Goethals is a judge in the Superior Court of the state of California, in Orange County. According to a report in the Los Angeles Times, “in January 2014, attorneys for a defendant in a murder case alleged that Orange County jailers and prosecutors had conspired to cover up a long-running program in which jailhouse snitches illegally pumped clients for incriminating information. The resulting hearings climaxed [in March 2015] in . . . in a rare move [when Judge Goethals] . . . tossed the D.A.’s office off its most high-profile case. The judge cited prosecutors’ ‘chronic failure’ to turn over [exculpatory] evidence to the defense.”

Furthermore, Judge Goethals invalidated convictions procured by false testimony and refusal of prosecutors to provide exculpatory evidence to defense counsel. The Los Angeles Times reported that in retaliation, “prosecutors are filing repeated disqualification motions against this judge [to prevent him from trying other criminal cases].” ¹⁰⁹

Comment:       This case makes an implicit point of importance. The power of prosecutors in the U.S. punishment-based system of justice is so great, and their discretion so unchecked, because they act with impunity. They have no responsibility to make restitution to people injured by their misconduct. They do not lose their jobs on account of misconduct unless it is so blatant that it is embarrassing to their superiors in the prosecutors’ offices. Apparently, prosecutors in Orange County, California, are so used to getting away with prosecutorial misconduct that they retaliate against a judge who takes action to stop it.

Juries

The U.S. Constitution carries over from the English common law the right to trial by jury in criminal cases. Jury trial arose in England as a protection from arbitrariness of the King’s courts. In both England and America, juries can acquit an accused even if the evidence seems to preclude a verdict of not guilty. That occasionally happens when jurors are distrustful of the prosecution, or when the prosecution is for something jurors do not consider should be punished. Egregious examples occurred at times in the southern states of the United States when all-white juries acquitted white men of charges of murder in the lynching of a black man.

The great American writer and humorist Mark Twain said that the ideal juror was a person who knew nothing about everything. There is some truth to Twain’s comment, in that trial lawyers often will bar a juror from a case where the lawyer thinks a juror may have some expertise in the facts and circumstances of a case and a consequent predisposition to favor the other side.

Jury duty is compulsory in the United States. Criminal penalties are imposed for refusal to serve on a jury without an excuse recognized in law. Jury duty is involuntary servitude. There is no recourse for this involuntary servitude. Accordingly, under the concept of justice in this book, imposition of jury duty on a person is a crime against that person, and hence an injustice.

Many people try to avoid jury duty because it takes time out of their lives they want for other activities, compensation is so meager that no one would work for that amount voluntarily, and jurors must attend court–a place most would rather not be.

Those who become jurors are predominantly people with nothing better to do, especially in long trials where it is common to excuse busy people who cannot afford to devote many weeks or months to try a case. Consequently, juries in general are not replete with bright and attentive people.

From the standpoint of restitution-based justice, jurors and judges share a common defect. They have no responsibility for a wrongful conviction, that is conviction of someone of a crime that he or she did not commit, or was never committed by anyone.

What is the liability and responsibility of a judge or jurors to a wrongfully convicted person who is sent to prison? What is their responsibility to the family of someone  executed for a murder later shown that he did not commit? There is no responsibility. Judges and jurors are irresponsible for their decisions. They have no proprietary interest in making correct decisions. If their decisions are unjust, they do not have to make restitution to the person injured by their wrong decision.

In a notorious case 19th century case in Nebraska, an accused was convicted of murder, and executed by hanging. Four years later the supposed victim of the murder showed up alive and well. ¹¹⁰ Wrongful convictions by judges and juries are not rarities. Such cases have been found with increasing frequency since the development of DNA evidence, which has been used to exonerate a significant number of people who had been wrongfully convicted.

Many wrongfully convicted persons do not have the benefit of DNA evidence to exonerate them, but some such cases come to light over time, usually after the accused has been in prison for many years. Lawyers who study wrongful conviction believe the number of persons exonerated from a wrongful conviction is small compared to wrongfully convicted people who are never exonerated, primarily because they are poor and lack the resources to pay for high quality legal defense.

Lack of accountability of prosecutors, judges and juries for wrongful conviction; comparison to responsibility of arbitrators in free enterprise justice

Prosecutors, judges, and juries have no responsibility for a wrong decision in any case. Just suppose prosecutors, judges, and juries had to make restitution to someone wrongfully convicted of a crime and sentenced to prison, or to the family of someone wrongfully convicted and executed.  If so, wrongful convictions would be less likely to occur.

In an especially horrendous and tragic wrongful conviction in Texas, a man named Cameron Todd Willingham was executed for the murder of his three small children by means of a fire he allegedly set deliberately at the family home.  Before the case went to trial the prosecution offered Willingham a plea bargain; if he would plead guilty he would be sentenced to life in prison rather than death. Willingham refused, protesting his innocence. Willingham’s actions were reminiscent of the great Giordano Bruno, who refused to recant his heresy, preferring death to dishonor. ¹¹¹

Willingham said he could not and would not admit to such a foul crime against his children, and chose death rather than making a false admission. While he was awaiting execution, an independent arson expert decided to examine the case pro bono (without charge). This expert reviewed all the evidence presented to the jury and concluded that there was no evidence of arson, and that the Willingham’s  conviction was based on what is known as “junk science,” that is presumably expert opinion  that is not expert at all, but rather is based on mistaken observations, and fallacious reasoning and conclusions.

All of Willingham’s appeals were exhausted over a dozen years of his incarceration on death row. The Governor of Texas denied clemency. The clemency review board deigned to examine truly expert opinion that exonerated Willingham of the arson charge.

After Willingham was executed, other experts became interested in the case, including one appointed by a Texas state commission and four retained by the Northwestern University Innocence Project. All agreed that “each and every one” of the indicators of arson had been “scientifically proven to be invalid.” ¹¹² Todd Willingham was survived by his common law wife and his parents. Under the law of Texas—and the same would be true elsewhere in the United States—the prosecutors, judge, and jury have no liability to Willingham’s family for sending him to his death on the basis of evidence later shown to be false.

In free enterprise justice there could be faulty and mistaken decisions by an arbitrator. That could not be ruled out because arbitrators are human beings and human beings are  are not perfect. However, in the case of mistaken decisions by an arbitrator, market justice would protect the public. This concept is explained above in the discussion of Free Enterprise Justice, under the caption “Private arbitration and mediation.”

Prisons

In California the agency that operates the state’s prisons is called the California Department of Corrections and Rehabilitation (CDCR). The word “rehabilitation” in this agency’s title amounts to a mockery of what rehabilitation could be for prisoners. There is very little rehabilitation going on in California prisons. One never reads in the media of wardens or highly placed CDCR officials complaining because the legislature does not provide funds for education and vocational training for prisoners. One does not read of such a thing because it does not happen. Prison officials could help prisoners through making available educational and vocational training. Nothing is stopping them from doing so, yet they do not protest or complain that the policy of the state makes it difficult to do anything for rehabilitation of prisoners.

There is no program in the California prisons for prisoners to work and earn income so they can help their families on the outside or save up to have some financial resources when they get out of prison.

To the contrary, when prisoners are paid, the rate of pay is literally a few cents an hour, this in a society where the most mundane and menial work outside of prison is paid orders of magnitude more money than a prisoner can earn in prison if he is given the opportunity to work at all, which is not available to most prisoners.

Prisons are operated by people who have no proprietary risk for mistreatment of prisoners, or for failure to help prisoners cope with prison and legal rules that make it difficult for a prisoner to provide a better future for himself or to navigate the transition from prison to life in normal society. For example, in California, prison authorities can and do sometimes thwart prisoners’ efforts to  take college correspondence courses, by denying the right to enroll in college correspondence courses at the prisoner’s own expense or refusing to provide a proctor by the college for examinations taken inside the prison. As noted below, a warden of one prison denied a prisoner named Michael Santos the opportunity to take courses leading to a Ph.D. degree after the prisoner had earned B.A. and M.A. degrees while serving earlier portions of his sentence in other prisons.

Health care is supposed to be provided to prisoners. However, in California, the courts had to intervene to order the state prison authorities to provide health care that the prisons had failed to provide.

To make things worse, the fact of a felony conviction and a stay in prison makes it extremely difficult for an ex-prisoner to find employment after release.

Punishment after punishment is heaped on prisoners:

• Arrest and jail pending trial if they cannot afford bail
• Long prison terms, in the majority of case for non-violent conduct, or conduct which amounted to a vice, not a crime, under the standards of justice advocated in this chapter
• Inability to pursue education, vocational training, or compensation from work while in prison
• Isolation from society for many years, sometimes several decades
• Release eventually into a society in which they are not equipped to function as normal human beings unless, somehow, the released prisoner is a person of unusual character, resolve, ingenuity and initiative.
• In the case of some ex-prisoners, restrictions on their post-incarceration activities are so limiting that they become permanently unemployed and even homeless.

Long-term incarceration has significant costs to society.

• In California published reports indicate that the annual cost of incarceration amounts to $50,000 or more per prisoner.
• During incarceration prisoners cannot work in reasonably compensated gainful employment. That loss deprives the prisoner and his family on the outside of the income the prisoner could earn if allowed to work for reasonable compensation while in prison.
• As noted above, on release, prisoners are marked with their felony conviction, and possible conditions of parole, that make it difficult to earn income and become productive members of society. Ex-prisoners are more likely than others to seek and obtain welfare assistance, at the expense of the rest of the public.

The situation is no different than California in the other forty-nine states or in federal prisons. People are locked up for decades without any provision for helping them earn a living when they are released. Most of them will be released eventually. They will come out of prison after years of being denied the normal comforts of human companionship with people of their choice. This is a recipe for creating great resentment and hostility among released prisoners. All too many of them will be sent back to prison for minor offenses that constitute a violation of the terms of their parole. It is a wonder that more ex-prisoners do not commit violent crimes after release, with all the pent up rage and resentment they must feel about their incarceration.

A young man of 23 was sentenced to 45 years in prison for selling illicit drugs. His name is Michael Santos. He is a person of initiative, good character (despite his offense), resolve, ambition and initiative. He made the most he could out of his time in prison. He wrote and published several books, took college courses by correspondence, and earned bachelor’s and master’s degrees. He wanted to pursue a doctorate, but the warden at the prison at that time forbade it.

Michael Santos commented in his books that most prisoners realize in a very short time, perhaps ninety days after initial incarceration, that they made mistakes that landed them in prison. They have already learned, after ninety days, that they should not do such things again. Yet they must stay in prison for years, even decades longer. Santos writes that gradually over time they begin to lose that newly found sense of right and wrong. They become prison drudges, just “doing their time” until release.

Through his writings Michael Santos met a woman on the outside, not a prisoner, who eventually became his wife. She helped him with publishing his books and with establishing a personal website. He was released after spending twenty-six years, nearly 60% of the sentence in prison. That release date was the time when he was entitled to release under federal law if he had not been in trouble in prison.

Now that he is out of prison, Michael Santos writes a daily post on his blog. He has appeared as a guest lecturer at universities and conferences. He is training to run a marathon. However, he is still on parole, and restricted in his travels. One can learn much from Michael Santos, and learn quite a bit about a human triumph over adversity, by going to his website and reading some of what he has written there and in his books. ¹¹³

Irresponsibility of legislators, police, prosecutors, judges and juries for the harm they cause

Legislators may enact legislation that results in an innocent person being incarcerated for decades, but they have no liability or responsibility to the injured party for such a miscarriage of justice.

Police officers may stop motorists for trifling traffic violations, commanding the motorist to pull his car over to the side of road. That constitutes an arrest. Occasionally a traffic stop ends with the motorist being handcuffed and taken to jail for being confrontational with the police or because the police find drugs on the person of the motorist or in his car. Traffic stops can result in the police killing some who has become argumentative or has tried to flee the scene of arrest.

In rare cases a police officer is prosecuted for homicide after an outrageous abuse of his power in killing someone. Even then, neither the police officer nor his employer must make restitution to the family of the deceased.

Cities are sometimes sued for damages and pay money to a party injured by police brutality during an arrest. Cities do not make such payments willingly. Some lawyer has to sue them on behalf of an injured party or his survivors if he was killed by a policeman.

Police officers sometimes procure false testimony for use by prosecutors, and yet police are seldom, if ever, held accountable for the harm caused by such false testimony.

Prosecutors may use a variety of unethical and illegal methods to procure a conviction of someone they could not otherwise convict. Yet prosecutors never have to make restitution to the injured party who has been wrongfully convicted due to prosecutor misconduct.

Judges and juries are never held responsible to make restitution to those upon whom they have imposed sentence in a case of wrongful conviction. Some states have a legislative provision for monetary payments to a wrongfully convicted person. However, in operation, the states make it very difficult for such a person to receive compensation.

How much should the compensation be for a person who spends many years in prison due to a wrongful conviction? Could any prosecutor, judge or any panel of jurors afford to pay a meaningful amount for such devastation of another person’s life? No, they could not. They never offer.

This is part of the injustice of the punishment-based system of justice in the United States.

The injustices cited above occur for a reason. That is, in the United States there are too many laws that stigmatize and punish conduct that harms no one, and at worst is a vice, not a crime. This multitude of laws gives prosecutors an enormous arsenal of weapons to prosecute and persecute people who not only have done no harm to anyone, but rather are people who are productive members of society engaged in useful work that is beneficial to their fellows. A few examples are set forth below.

LEGALLY AUTHORIZED INJUSTICE IN THE UNITED STATES

Prosecutors commit injustice after injustice, as a few cases below illustrate. However, they do so under authority of law. That makes them exempt from responsibility for the harm they do to the people they prosecute.

The cases discussed below are to the body of unjust prosecutions in the United States, as a few crystals of ice at the top of a glacier. The summaries of facts in the ten cases deliberately omit much detail, for a reason. Criminal prosecutions, like civil litigation, in the United States can be extremely complex because of complexity built into the law.

The laws of the United States provide prosecutors with an arsenal of weapons to charge an individual defendant with multiple crimes for a single prohibited act. In a federal case the charges could include not only an accusation of violating a particular statute, but in addition prosecutors can and usually do add charges such as obstruction of justice, mail fraud, and conspiracy, to name just a few. These are catchalls that allow prosecution when there is little or no proof of any other offense. Describing such a multitude of charges, and the defenses to them that occur as defendants attempt to defend themselves, would require a treatment that is orders of magnitude longer than the discussion of the cases below. However, the summaries include the basic charge and the principles involved in comparing each case with an alternative outcome under a voluntary, restitution-based system of justice.

Peter Gleason

The Federal Food and Drug Administration (FDA) permits the manufacturer of therapeutic pharmaceutical products to advertise only the uses for which the FDA has approved the medication as safe and efficacious. To obtain such an FDA approval may cost as much as one billion dollars (US $ 1,000,000,000). Not infrequently physicians find the drug efficacious in alleviating or mitigating symptoms or medical conditions for which the manufacturer did not apply because of the great cost in obtaining separate approval for each medical condition. Federal law makes it illegal for the manufacturer to advertise the drug for such a condition. However, it is not illegal for physicians to prescribe it for conditions not approved by the FDA. This is called “off label” use.

Peter Gleason was a psychiatrist. The word “was” is appropriate because Dr. Gleason committed suicide in consequence of being prosecuted by the FDA. Dr. Gleason had found that a medicine called Xyrem was effective for relief of a number of off label conditions, including fibromyalgia and chronic fatigue syndrome.

Dr. Gleason advocated such use at medical conferences. He was paid an honorarium by the manufacturer of Xyrem for his appearance at such conferences.

One day while waiting for a train on Long Island, New York, near where he was in medical practice, six federal agents arrested him, handcuffed him and took him to jail to answer charges of aiding and abetting the manufacturer in illegal advertising of Xyrem for off label use.

As part of its prosecution, the Department of Justice (DOJ) on behalf of the FDA, seized all of Dr. Gleason’s financial assets under federal law providing for such seizure of assets garnered by an illegal activity—here advocating an off label use for Xyrem in a talk for which the manufacturer paid him an honorarium.

Deprived by this seizure of funds to hire a lawyer of his choice, Dr. Gleason had to be represented by the federal public defender. His medical practice had been ruined by the charges. He decided to plead guilty to a misdemeanor charge, take probation, and a nominal fine. The prosecutor presumably thought this was a most generous settlement. Exhausted and despondent because of the prosecution, Dr. Gleason committed suicide.

Meanwhile, another defendant in the same case was vindicated by a court decision that if applied to Dr. Gleason would have found him not guilty of the charges. It was too late for Dr. Gleason. He was already dead. ¹¹⁴

Question:         Did Dr. Gleason harm anybody or interfere with the property of anyone else? How would he have fared in a voluntary, restitution-based system of justice?

Answer:           Dr. Gleason did not harm anybody or interfere with the property of anyone else. In a restitution-based system of justice no one would have made a claim against Dr. Gleason because of advocacy of Xyrem for medically effective uses. Dr. Gleason was a victim of unjust political laws and an unjust prosecution.

Kerri and Brian Kaley

Federal law authorizes prosecutors to obtain a pretrial order freezing the assets of a defendant if prosecutors charge the assets were related to wrongdoing alleged in a criminal indictment. The defendant is not afforded the opportunity to contest the pretrial freeze of assets.

According to an editorial in the Los Angeles Times, “in 2007, Kerri Kaley, a sales representative for a subsidiary of Johnson & Johnson, and her husband Brian were indicted on charges that they had participated in a scheme to resell medical devices allegedly stolen from hospitals; they maintained that the hospitals no longer had any use for the devices.

“The couple wanted to pay a private lawyer using personal funds, including a certificate of deposit they had purchased using a home-equity line of credit. But a court froze many of their assets [at the request of the prosecution, without affording the Kaleys the opportunity to oppose the action. The prosecution said the assets] . . . were related to the couple’s supposed wrongdoing. [The Kaileys appealed to the U.S. Supreme Court.]

“The issue before the Supreme Court was whether a judge should have taken a second look at the indictment, with an eye toward releasing the couple’s assets if the evidence that they had committed a crime was questionable [which it was in this case]. By a 6-3 vote, the justices said no.

“In a dissenting opinion, Chief Justice John G. Roberts, Jr. [said] “few things could do more to undermine the criminal justice system’s integrity than to allow the government to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice — without even an opportunity to be heard.” ¹¹⁵

Question:         Did the Kaleys interfere with the property of Kerri Kailey’s employer?

Answer:           Not according to the facts as related in the reports of the Supreme Court decision. In restitution-based justice the employer could make a claim for restitution by the Kaileys. That claim would be decided in voluntary arbitration between the parties. There would be no freeze of their assets, a tactic only the United States Department of Justice can get away with before proving a case against a defendant.

William Hurwitz

Federal law classifies some pain relief medications as controlled substances that a physician should not prescribe to drug addicts. Such medications are opiates, and protracted ingestion of them can cause addition. However, some people have such severe and chronic pain that they are disabled—they cannot work because of their pain.

Dr. William Hurwitz specialized in treatment of severe and chronic pain. He prescribed medications that were controlled substances, but enabled his patients to work a full day without being in constant pain.

The FDA caused Dr. Hurwitz to be prosecuted as a dealer in illicit drugs under the drug laws of the United States. Some fifteen of the 500 patients he was treating for chronic pain lied to him about the severity of their pain in order to get a prescription. Dr. Hurwitz was tried and convicted and sentenced to 25 years in prison. That conviction was reversed on appeal, but not in a way that would prevent a new prosecution. At a second trial Dr. Hurwitz was again convicted and then sentenced to 57 months in prison. He was ruined financially and professionally. His career as a physician was over. ¹¹⁶

Question:         Did Dr. Hurwitz harm anybody by prescribing opiates for pain relief?

Answer:           No. Even the few drug addicts who used him to get a prescription were engaged in a vice, not a crime. In a restitution-based system of justice there would be no laws against prescribing drugs even to addicts. No one would have made a claim against Dr. Hurwitz for restitution. Dr. Hurwitz was a victim of the war on drugs.

Gibson Guitar Corporation

U.S. federal law prohibits importation of wildlife and plants if the importation violates a law in the country of origin. Gibson Guitar imported rosewood from India for use in making the fingerboards of guitars. The company had the written permission of the government of India to buy Rosewood in India and export it from there to the United States.

Gibson is a relatively small company that operates factories in Tennessee. According to an Op-Ed article by the company’s CEO that was published in the Wall Street Journal, in August, 2011, “without warning, 30 federal agents with guns and bulletproof vests stormed our guitar factories in Tennessee. They shut down production, sent workers home, seized boxes of raw materials and nearly 100 guitars, and ultimately cost our company $2 million to $3 million worth of products and lost productivity. Why? We imported wood from India to make guitars in America.”

The seizure was by agents of the U.S. Fish and Wildlife Service.

After the CEO’s article, the seizure received a great deal of publicity on the internet, much of it unfavorable to the federal actions.

According to an Op-Ed article in the Wall Street Journal by civil liberties lawyer Harvey A. Silverglate, in August 2012, “. . . prosecutors agreed not to prosecute Gibson provided the company adheres to some remedial measures meant to assure that it never again violates regulations—regulations that it likely didn’t violate in the first place. The company also agreed to pay a modest (as these things go) $300,000 monetary penalty to the government, along with a $50,000 contribution to the National Fish and Wildlife Foundation. . .

“[F]ederal prosecutors required, as part of the ‘criminal enforcement agreement,’ that Gibson not only ‘accept[s] and acknowledge[s] responsibility for the conduct’ alleged, but also that the company’s ‘public statements regarding this Agreement will not contradict the statement of facts’ set forth in an appendix to the settlement agreement.

“Put another way, Gibson is now forbidden to tell the world the whole truth about its conduct and its reasons for settling a case it previously claimed publicly . . . involved no criminal conduct on its part. In exchange for agreeing to read the government’s script, Gibson regained its ability to conduct business without a federal sword of Damocles dangling over its corporate head.” ¹¹⁷

Question:         Did Gibson Guitar interfere with the property of anyone?

Answer:           No. In a voluntary, restitution-based justice system no one would have bothered Gibson about its importation of rosewood from India, with the consent of the government of India.

Arthur Andersen & Co.

U.S. federal law makes it a crime to obstruct justice. The term “obstruction of justice” has been applied by the Department of Justice to any act that the DOJ believes impedes prosecution of a criminal case. Arthur Andersen & Company (Andersen) was a large and internationally respected accounting firm with a long history.  The word “was” in the preceding sentence is appropriate because a DOJ prosecution of Andersen put the firm out of business.

Andersen was the auditor for Enron Corporation, a company that was prosecuted by the DOJ for a variety of charges related to its business. Some of Enron’s executives were sentenced to prison.

Andersen was a major obstacle to convicting Enron executives because Andersen auditors had reviewed and approved Enron’s accounting for transactions that were the basis for the DOJ’s prosecution. According to civil liberties lawyer Harvey Silverglate, the DOJ chose to prosecute Andersen in order “. . . to sweepingly discredit the firm and disable it from testifying for the Enron defendants.” The indictment of Andersen “. . . effectively destroyed the firm. No auditing firm can successfully operate once indicted, and Arthur Andersen rapidly, and predictably disintegrated. Companies simply will not, and in nearly all jurisdictions may not, employ auditors under such a cloud.”  ¹¹⁸

The DOJ charged Andersen with obstruction of justice for destroying documents regarding Enron, even though the document destruction was done pursuant to Arthur Andersen’s established policy for retention and destruction of records, and before the DOJ notified the company that the DOJ sought to get those documents. Andersen was found guilty in federal trial court, which effectively put the company out of business. On appeal, the U.S. Supreme Court ruled unanimously that Andersen had done nothing illegal; therefore the DOJ was wrong in prosecuting  Andersen for obstruction of Justice; and that the trial judge was wrong in instructing the jury that “. . . even if [Andersen] honestly and sincerely believed that its conduct was lawful, you may find Andersen guilty.” ¹¹⁹

The significance of the Andersen case was that the DOJ can use a charge of obstruction of justice as just another tool to win a prosecution, regardless of the merits of the charge. The DOJ wanted to eliminate the ability of Arthur Andersen executives to testify that they had given Enron a clean bill of health in their last audit of Enron, because that would have made difficulties for the DOJ in prosecuting Enron. The DOJ was perfectly willing, in order to bolster its prosecution of Enron, to put Arthur Andersen out of business.

Question:         In a restitution-based system of justice could Arthur Anderson have been put out of business by a claim for restitution based on damages its accounting caused?

Answer:           No. Before it was put out of business by the DOJ Arthur Anderson had the financial wherewithal, and insurance protection, to pay restitution for any harm it did.

Michael Milken

Michael Milken was a was a highly successful, and wealthy, financier of corporations raising money by selling junk bonds, which are corporation bonds not rated investment quality by bond rating services. In the late 1980s Milken was indicted on charges of insider trading.

According to civil liberties lawyer Harvey Silverglate, “. . . the federal criminal prosecution against Milken was . . . a fabrication [that] consisted, in part, of dubious testimony given by rewarded witnesses, and felony charges . . . that, in the opinion of informed and objective observers did not appear to constitute crimes.” ¹²⁰ Silverglate says that he joined Milken’s defense team “. . . following Milken’s unexpectedly harsh sentencing.”

Milken pleaded guilty to the charges in order to save his brother, Lowell Milken, from prosecution by the DOJ even though most, if not all, observers agree there was no basis at all for prosecuting Lowell Milken for anything.

The significance of the case is the lengths to which DOJ prosecutors will go to win their case.

Question:         How would Michael Milken have fared under a voluntary, restitution-based system of justice.

Answer:           If anyone made a claim for restitution against Milken on grounds that he had injured them, the parties would arbitrate the claim. Milken would have paid any arbitration award that he was financially able to pay. He would never have been threatened with prison because there would be no prisons. No one would have made a claim against Michael’s brother Lowell, because that would have subjected them to a claim by Lowell for making an unjustified claim that injured Lowell’s reputation.

Martha Stewart

Federal law makes insider trading illegal. Insider trading involves selling or buying shares of a company whose shares are traded in the public stock markets. Only those persons who owe a fiduciary duty to a company are considered “insiders” for purpose of the insider trading prohibition. Illegal insider trading occurs when an insider trades in shares of the company at a time when he is in possession of material (that is, important) information about the company that has not yet been disclosed to the public.

Martha Stewart is a businesswoman, writer, and television personality. She held shares of a publicly traded corporation. One day her stockbroker called to tell her she ought to sell her shares because the CEO of the company was selling a significant amount of his own shares. Acting on this advice, Stewart sold all her shares.

The federal Securities and Exchange Commission and the DOJ charged Martha Stewart with insider trading. However, those charges were dropped, probably because she was not an insider. Instead the DOJ charged her with making false statements to federal authorities when they interviewed her about the sale of shares. The DOJ also charged Stewart with other obstruction of justice offenses.

The federal false statement law makes it a felony to lie to any federal official on any matter deemed material to a federal agency carrying out its business. Unlike perjury, the false statement can be grounds for prosecution if the person charged is not under oath when the statement was made.

Martha Stewart fabricated an explanation for her sale of share, in collaboration with her broker who told the same false story, but not under oath, to federal officials.

Stewart went to trial and was found guilty by the jury on the false statement charges. She was sentenced to serve a five-month term in federal prison and two years of supervised release, including five months of electronic monitoring.

Question:         Did Martha Stewart interfere with the property of any person or harm anyone else in any way?

Answer:           No. It was not and could not be shown that anyone in particular was harmed by Stewart selling a relatively small number of shares in a publicly traded company. In a voluntary, restitution-based justice system, anyone claiming Stewart interfered with their property could make a claim for determination in arbitration. Stewart was more than able financially to pay any arbitration award arising out of her sale of shares. She would not have been threatened with prison or sent to prison.

Leonis and Dominica Malburg

California’s election laws prohibit registering to vote in a California city where the registrant does not make his domicile. The question of domicile is one of intent and the facts and circumstances of the particular case.

Leonis Malburg is the grandson of the founder of the City of Vernon, California. Vernon is a small city with very few voters. The city is home to a number of businesses. It also has a city government and a mayor.

Leonis Malburg had a residence in Vernon and another residence in Los Angeles. In the late 1970s he was charged by the Los Angeles County District Attorney (DA) with violating the law by registering to vote in Vernon, in part because he had a home in Los Angeles, as well as spending time in Vernon. The DA regarded the city of Los Angeles as the proper place for Mr. Malburg to register to vote. The Superior Court dismissed the prosecution on grounds the DA had not shown probable cause that Malburg had violated the law. At the time Leonis Malburg had been the mayor of Vernon for many years. Subsequently, the Attorney General of California issued an opinion that there had been no showing Mr. Malburg was not legally entitled to register and vote in Vernon.

In 2006 the DA again prosecuted Mr. Malburg for violating the voting registration law. This time the DA also prosecuted Leonis’ wife Dominica. At the time Leonis was in his late 70s and Dominica was 80 years of age. By that time Leonis had been mayor of Vernon for fifty years. So few people vote in Vernon that his reelection time and again was virtually assured.

In their defense the Malburgs argued that they had relied on the previous court ruling dismissing a prosecution based on virtually identical circumstances–namely the Malburgs’ place of domicile. Nevertheless, the DA prosecuted the case to trial. Leonis and Dominica were each convicted, sentenced as felons but placed on probation, and ordered to pay a fine. They could have been sentenced to prison.

The significance of this case is the apparent abuse of discretion of the DA in renewing a prosecution that had been decided adversely to the DA nearly 40 years earlier. Prosecutors supposedly have an ethical duty to discharge their duties fairly. The second prosecution was unfair. Of course the Malburgs relied on the favorable court ruling in the prior prosecution. At most, the DA should have given them warning his office might prosecute if the Malburgs continued to register to vote in Vernon.

Question:         Did Mr. and Mrs. Malburg harm anyone? Did they interfere with any other person’s property?

Answer:           No, they did not. In a voluntary, restitution-based justice system anyone making a claim against the Malburgs would have the claim resolved by arbitration. There would be no threat of prison for an elderly couple and no felony conviction to blemish their reputation.

Raymond Donovan: Give me back my reputation

Raymond Donovan was an executive in a New Jersey construction company. In 1981 he was appointed U.S. Secretary of Labor by President Ronald Reagan.

In 1984, the District Attorney in the Bronx District, New York City, persuaded a grand jury to indict Donovan and nine other defendants on charges of larceny and fraud in connection with a subway-tunnel contract. Because of the indictment, Mr. Donovan resigned from his post as Secretary of Labor.

After two years of pretrial preparation the case went to trial before a jury. The trial lasted nine months. The costs of legal defense came to US $13 million.

At the conclusion of trial testimony, the defense rested its case without calling a single witness, relying entirely on cross-examination and closing arguments to make its points.

In the jury’s deliberations, only one vote was needed to acquit all ten defendants of each of the ten charges against them. Jurors interviewed after the verdict said that the prosecution failed to  present evidence of guilt.

In open court, after his acquittal Donovan called out to the prosecutor “give me back my reputation!” ¹²¹

Question:         Did the prosecutor try to restore Mr. Donovan’s reputation?

Answer:           No.

Question:         Could the prosecutor be held responsible for damages to Mr. Donovan’s reputation caused by a prosecution lacking in evidence of guilt?

Answer:           No.

Question:         Would the state and the prosecutor reimburse the defendants for their $13 million in costs of legal defense?

Answer:           No. Such a thing is unheard of in the United States.

Question:         In a restitution-based justice system under free enterprise could such a prosecution occur?

Answer:           No. The remedy for alleged fraud would be a claim for restitution submitted to mediation and arbitration. There would have been no threat of prison, and no long and expensive criminal trial.

Susette Kelo

In the city of New London, Connecticut, a nurse named Susette Kelo bought her dream house, a modest pink cottage situated on the waterfront of Long Island Sound, in a long-established neighborhood known as Fort Trumbull.

The City decided to take the homes of people in the Fort Trumbull District. Why? To transfer to the New London Development Corporation (NLDC) which produced a development plan that would bring commercial property owners to the area, thereby offering the prospect of increased future property tax collections for the city.

The New London city council authorized the NLDC to use eminent domain to condemn the land of those who refused to sell. Seven individuals and families, who between them owned fifteen residential properties, refused to sell despite political pressure. One was Susette Kelo, who wanted to keep her home near the waterfront.

The 5^th Amendment to the U.S. Constitution prohibits the taking of private property for public use without just compensation. Ms. Kelo’s legal counsel, lawyers from The Institute for Justice, argued that it was unconstitutional for the city to take private property of one person in order to transfer ownership to another person for that person’s private, i.e., non-governmental use.

The condemnation litigation went all the way to the United States Supreme Court. Susette’s Kelo’s lawyers argued to the Supreme Court that the condemnation was an unconstitutional taking for private use.  The Supreme Court decided otherwise, holding that the condemnation in the Kelo case did not violate the U.S. Constitution.

Subsequently, all the homes taken by condemnation were torn down. However, the developer abandoned plans to bring in commercial property owners, and ten years after the Supreme Court decision the land taken by condemnation remained a barren field. ¹²²

Question:         How would Susette Kelo have fared in a restitution-based system of justice?

Answer:           Susette Kelo had not interfered with the property of anyone else. It was the city of New London that interfered with her property. If the city wanted the property badly enough, it would have to make a monetary offer to pay a price acceptable to Susette. Otherwise, Susette would keep her dream house.

THE DEPARTMENT OF INJUSTICE

In George Orwell’s celebrated novel 1984, the all-powerful totalitarian state of Oceania is modeled after the communist Soviet Union. Winston Smith, the protagonist of the novel, works for the Ministry of Truth. The function of the Ministry of Truth is to falsify historical events to make it appear that the historical record always supports the position of the ruling dictator. The Ministry of Truth is actually a ministry of lies.

There is a Ministry of Love in Orwell’s novel. Its function is to enforce loyalty to Big Brother, Oceania’s dictator. This ministry operates by engendering fear through secret police, repression, and brainwashing. Its title is a deliberate misnomer. It is a ministry of hate.

An Op-Ed article appeared in the New York Times under the title “President Obama’s Department of Injustice.” ¹²³ The New York Times describes the author, Alec Karakatsanis, as a civil rights lawyer and co-founder of Equal Justice Under the Law, an organization that litigates on behalf of indigent clients.

Mr. Karakatsanis reports a particular injustice against thousands of prisoners—the diligent effort of the U.S. Department of Justice [DOJ] to prevent the release of persons kept in prison for many years after they should have been released. The salient facts are the following.

A man is convicted of a federal crime. Due to a legal error his sentence is improperly increased for many years. In one such case the prisoner, Ezell Gilbert, was sentenced to 24 years and four months for possession of a small amount of crack cocaine with intent to distribute it.

Mr. Karakatsanis reports that, “at his sentencing, Mr. Gilbert noted a legal error that improperly increased his sentence by approximately a decade based on a misclassification of one of his prior offenses. In 1999, without a lawyer, he filed a petition seeking his release. A court ruled against him. Nearly 10 years later, the Supreme Court issued a ruling in another prisoner’s case, confirming that Mr. Gilbert had been right. A public defender helped [Mr. Gilbert] file a new petition for immediate release in light of this new decision.

“[The DOJ], however, convinced a Florida federal judge that even if Mr. Gilbert’s sentence was illegal, he had to remain in prison because prisoners should not be able to petition more than once for release. The DOJ argued that ‘finality’ of criminal cases was too important . . . to allow prisoners more than one petition, even if a previous [petition] was wrongly denied.

“A federal appellate court disagreed, and in 2010, three judges set Mr. Gilbert free. . .  Mr. Gilbert returned home and stayed out of trouble . . . There are many people like Mr. Gilbert in America’s federal prisons — people whose sentences are now obviously illegal. Instead of rushing to ensure that all those thousands of men and women illegally imprisoned . . . were set free, the Justice Department said that it did not want a rule that allowed other prisoners like Mr. Gilbert to retroactively challenge their now illegal sentences . . .

“In May 2011 . . . a different group of judges sided with the original judge, saying that the ‘finality’ of sentences was too important a principle to allow prisoners to be released on a second rather than first petition, even if the prison sentence was illegal . . . Mr. Gilbert was rearrested and sent back to prison to serve out his illegal sentence. . . In 2013, President Obama granted Mr. Gilbert clemency.”

According to Mr. Karakatsanis, Mr. Gilbert’s case is not unique. Karakatsanis says that the DOJ works diligently in other cases to keep people in prison after appellate courts have ruled they should be released because their sentences were discriminatory and unjustifiable.

Under the definition of injustice in this book, injustice is an interference with property, that is, a crime, to which there is no recourse. As is apparent from the federal prosecutions discussed in this chapter the U.S. Department of Justice has an Orwellian title. It dispenses injustice rather than justice. That is its job under the legislation that the DOJ enforces.

CHAPTER SUMMARY

Ubiquitous Injustice

Injustice in the legal system of the United States of America is ubiquitous. It is so pervasive that it has permeated every aspect of life. Most Americans are aware only of particular injustices that they encounter in their own lives—an unjustified traffic citation with an expensive fine to be paid, involuntary jury duty, inability to obtain adequate medication for pain relief, the ongoing requirement of 18-year old men to register for conscription, or the fear of draconian punishment for possession of prohibited drugs.

Americans generally are not aware of the increasing cascade of laws criminalizing activities that harm no one else, the fear of physicians to prescribe pain medication adequate to relieve chronic and severe pain, the power of traffic police to arrest and jail motorists without evidence of conduct harmful to other motorists or anyone else, police seizure and confiscation of cash, bank accounts, automobiles, and homes of persons never accused of crime, much less convicted, other injustices described in this chapter, and much more.

People do not think of taxation as theft and an injustice because they have been indoctrinated in the belief that their payment of taxes is voluntary compliance with the law. It is not. There is no choice about paying taxes. Punishment is meted out to those who try to avoid paying the amount of tax that the law requires. Taxpayers have no recourse to this interference with their property. It is another incidence of injustice that affects Americans throughout the course of each year  even though most Americans would not consider it an injustice.

Before the advent of centralized political rule, human beings resolved disputes of all kinds by mediation and arbitration in the community where they lived. Justice was based on monetary payments in restitution for injury to others. Once political rulers took over the dispute resolution function, they instituted punishment-based justice.

This chapter posits that the natural evolution of human society will be away from punishment-based dispute resolution and towards a new and better form of restitution-based justice. The existing punishment-based system of justice in the United States results in injustice after injustice—harm and injuries to persons and property for which there is absolutely no recourse. Injustice that is so pervasive has another name in the lexicon of CTLR. That name is tyranny.

It is a tyranny in which the following injustices occur often enough that rather than being an aberration they must be considered a systemic manifestation of the law, and even in some of the following examples its normal method of operation:

• Legislators make rules under which people who harmed no one else are prosecuted and imprisoned for years or decades.
• Police officers make traffic stops ending up in the jailing of someone who harmed no one else. In some cases the traffic stop results in the police killing a motorist who had not harmed the police officer or anyone else. Usually police officers have no responsibility or liability for injuring or killing people in this way.
• Police officers cooperate with prosecutors in suborning perjury.
• Prosecutors obtain convictions procured through a variety of coercive and fraudulent tactics including suppression of exculpatory evidence, use of intimidation and deceit to induce false confessions, suborning perjury, persuading victims of crime to make a false identification of a supposed offender, and more.
• Judges are required by the law to sentence people to prison for drug offenses not involving anything other than the vice of using narcotic drugs or selling them to others who want to use them.
• Juries have imposed death sentences on innocent persons far too often to be characterized as an unfortunate accident; rather it is a systemic phenomenon of the U.S. punishment-based system of justice.
• Prison authorities act as though they were custodians of human refuse, providing no rehabilitation by way of education, vocational training, the opportunity to work for a wage commensurate with the value of the prisoner’s work to others, and helping a prisoner to maximize his chances of successful integration into society after he is released.

This punishment-based system of justice is the greatest injustice in human society, after wars, another product of centralized political rule.

A future, voluntary, restitution-based system of justice will be a great advantage to all human beings, and will relieve humanity of the misery caused by punishment-based injustice and tyranny.