Several years ago, the police entered the office of a young professor at a reputable university and arrested him for an online crime. They took the professor away, booked him, and then offered him a deal: admit guilt and get off easy. The professor said to the few people to whom he was permitted to speak that this was crazy because he was innocent. His lawyer warned him: fight this and you could get life; admit guilt and you will get a suspended sentence. He took the deal. It was a trick. Now he languishes in jail, his life wrecked as far into the future as he can see.
. . . Trials in federal criminal cases are rare. Nine in ten cases are settled in pleas like the above case. Only 3 percent of the cases go to trial. Among those that go to trial, the defendant wins once in every 212 times.
Lew Rockwell, "The Police State Abolishes the Trial"
Even "small government" conservatives and libertarians agree with "big government" types that the state is needed to deal with heinous crime. They would like to see the state limited to dealing with crime, but they see no way to deal with crime apart from the state. I've taken a shot at trying to answer this challenge here, but I'd like to try again, this time by arguing that the state cannot be limited to a crime-fighting agency and that it can deal with crime only in ways that are inherently sinful.
First, the state cannot be limited to a crime-fighting outfit. No state in recorded history has ever limited itself to fighting crime; this is because the dynamics inherent in a state work against it ever doing so.
The first such dynamic is "mission creep." If government is needed to pursue, arrest, try, and punish criminals, any activity that helps it do so is therefore part of the job description. For example, if the powers that be are convinced that poverty leads to crime, fighting poverty becomes by definition part of the fight against crime. (And, right or wrong, those whose will becomes law are by definition the powers that be.) And if subsidizing a pharmaceutical corporation, or feeding school children three free meals a day, or building a stadium for a major league sports franchise will fight poverty, these activities also become the proper province of government. Which, of course, is where we are today.
By what criteria does anyone decide what other activities are and are not legitimate for governments to undertake? I can think of no criteria that would allow the creation of a state to "deal with heinous crime" that are not elastic enough to eventually subsidize hobbies for millionaires. And that assumes that those in power are not stretching the definition under the guise of "doing the job more effectively" to serve their own ends. Only the anarchist principle that bodies and property are sacred is stretch-proof.
This leads us to the second dynamic, the impunity of self-interested government agents. Self-interest is, of course, a universal human trait; this is why Jesus tells us that our ultimate interest is to be willing to give up the whole world and to look to the condition of our souls (Matt 16:26).
But government is by nature the organization in which (I would say the fiction by which) some people are able to do with impunity what others would be considered criminals for doing. These actions always begin with tax collection, but they eventually include intrusion into people's private lives and have gone so far in this country as to include caging people who sell raw milk. As I detail here, we all want to push the limits of actions permitted to us. This is "mission creep" with no pretense of benefit for anyone but government agents and their cronies.
There is also a theological reason that even a state devoted only to fighting crime is illegitimate: trying to limit government to fighting crime turns on its head Jesus' dictum that he who would be a faithful steward over much must first prove himself faithful over little things. People whose bodies and property are not secure live in chaos and cannot plan for the future, so protection of life and property is perhaps the most basic and important function performed by any society. Before government can be trusted to take care of such important things, it needs to prove itself faithful in the less-important things. (Like what? Delivering the mail? Educating children? Running recreational programs?) But "small government" types don't want the government messing in the small things, in part because they know that government ruins everything it touches.
So if government can't be trusted in the little things, it shouldn't be given charge over important things like keeping the peace. And if it shouldn't be given charge over the little things, it will never earn the right to steward the big things.
Let's assume for the moment that it is permissible to delegate peacekeeping to government and see how morally it acts. Given the impunity with which government agents can act, I guess that the quote that begins this post describes an occurrence that is more common than we know.
I would further suggest that even if government starts out as a legitimate peacekeeper, it can't be trusted to do so morally for long.
Even if cases like that in the quote are tolerably rare, the last sentence should give you pause: can it be that the government justly condemns over 99.5% of its accused? With all the unknowns that go into criminal investigations, can they really get it right that often? What sports team wins 99.5% of the time, season after season? What oncologist has a 99.5% cure rate? Or could it be that a prosecutor and judge who would pull a bait-and-switch on someone willing to cooperate with the system would bend the rules even further against someone who fought the charges?
If we go ahead and assume that this case was an exception, and that plea bargaining is otherwise done in good faith, how good is that faith?
Let's forget for now that the Bible nowhere commands or authorizes prison as a response to criminal behavior and assume that God prescribes thirty years in jail for the "online crime" the criminal in the example committed. By offering a lesser sentence isn't the system committing an offense against God and an injustice against whoever is supposed to benefit from the convict's incarceration? By what authority is clemency even offered? And if the system is exceeding its authority by offering clemency, how could anarchy do worse than offending God and committing injustice against innocent people? (Remember: the plea bargain takes into account only the accused's willingness to work with the system, not the nature of the crime or the accused's character.)
If clemency is a sin, then, in order to make the plea bargain just the system can pile on charges to be bargained away, as we know happens. This "online crime," for example, could have transmission across state lines, or use of a motor vehicle, or whatever a creative prosecutor can come up with, each with additional penalties, piled on it; then if the accused takes the plea bargain, he gets the thirty years God prescribes. So far so good. How, though, does anyone with a conscience make his living accusing people of crimes he knows they're innocent of or for the same crime more than once? Isn't that a form of lying, even if the hope is that by piling on false charges he can force the accused to agree to the plea bargain and only serve the time God prescribes for the true charges? Isn't that a classic case of using the end to justify the means?
And, of course, our accused might obey his human nature to fight for his survival. If he does, it's 99.5% sure that he will be sentenced to more than God's prescribed thirty years. Again here, God is offended by the government's excess zeal (cf. Num 20:8-11): in this case, the convict is treated unjustly. (And, of course, if he is innocent of any of the charges against him, he suffers as an innocent man.) Again: how could anarchy possibly be worse?
If offering plea bargains is inherently immoral, then not offering plea bargains should fix the problem. But then we come up against the problem plea bargains were instituted to solve: spurious defenses.
Why should someone of whose guilt the evidence leaves no reasonable doubt be put on trial? Isn't that a waste of time and money? But who is to decide whether the evidence leaves enough doubt to make a trial worthwhile? Wouldn't the process to decide whether the evidence requires a trial be itself in effect a trial? If a trial is necessary, rather than putting the evidence on trial, wouldn't it make more sense to put the accused on trial? Now we're back where we started.
It would seem that some trial is inevitable. But even if a trial isn't inevitable, what does an "obviously guilty" accused have to lose by calling for a trial? It delays whatever penalty he is likely to receive, and there is the off-chance that he'll be acquitted. And if he's convicted, he can appeal almost indefinitely, thus tying up the system and limiting its ability to deal with cases where the accused's guilt is not as readily established. There is injustice either way.
Anarchy avoids all three unsolvable problems of government peacekeeping. Any agency that would stay in business keeping the peace would first have to convince prospective customers that it could do so by earning their trust in smaller matters, perhaps through some form of health or property insurance. People who wanted to defend themselves would be free to do so, benefiting from their own good decisions and suffering for the bad ones. Only those agencies who were able to convince their customers over the long term that they were able to protect those customers' interests would stay in business.
Instead of trials where the practically omnipotent state squares off against a hapless defendant (who might, of course, be guilty of some violence; the salient point here is that he is in no position to defend himself), the heuristic process would take place in an arbitration session, where the protection agency would be trying to keep its good reputation for treating well not only its customers but the other agencies it interacts with. The accused also would be concerned about his reputation: if his protection agency terminates his contract because protecting him is no longer profitable, he will have a harder time replacing it than fulfilling its stipulations for further coverage. The same also goes for the plaintiff, the accused's victim.
The agents of erstwhile protection agencies would thus serve their long-term self-interest by serving, not dominating, their customers. No system is perfect, so the mentality that says, "I can get away with X, so I'll see if I can get away with X + 1" will never disappear completely, but in anarchy it will only work in the short term, never in the long term, as it does so commonly in government systems.
And the "mission creep" of any agency will be limited to those areas in which it is able to prove competence to the satisfaction of its customers: they may be able to do X quite well, but if they fail at X + 1, it will either close that operation or risk losing their advantage in X.
As the old song says, "If ya wanna be gre-e-e-eat in God's kingdom, learn to be the servant of all." State agents don't serve, so the state cannot do a great job of dealing with heinous crime. Anarchism is simply the servant principle applied to all areas of life.
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