Originally I had planned to produce for Reason as its first venture into the subject of the police an essay on the methods by which the police may morally obtain data for their work. After some thought, however, I decided some general preliminary work was in order before branching into a specific topic like data and the police. Actually, there is little literature available on how the police would operate in a free society, and at a time when the police threaten to become an increasingly intrusive part of American life, this is disappointing. Disappointing too, is the lack of knowledge about how the police now operate that most people, including vehement supporters and detractors of the cops, display—as well as the absence of intellectuality evidenced in most debates about the police.
This month's editorial notes will deal with the popular subject of brutality from a reference point different from that of the average magazine. Better than perhaps any other aspect of the police (because when transposed into the proper terms it is the central aspect), brutality affords a perfect beginning to an article (or series of articles) on theory of police work, structure, and power.
After each recent mass police action that shed blood—People's Park, Chicago, Harvard, Columbia—debate begins anew. "Liberals," "conservatives," "radicals," "lawnorder Democrats" argue endlessly: were or were not the cops brutal? As enlightened observers will not need to be told, the results of these debates have been inconclusive, due primarily to the contradictions underlying the arguments of the debaters. Asked to provide a conceptually consistent definition of brutality, the average debater would be hard pressed to provide even a semblance, let alone a logically defensible definition.
As is so often the case, it is the New Left that comes closest to the truth, if only accidently. It is absurd, they say, to argue whether or not the police were brutal in any particular instance because the system is brutal by definition. As the system's agents of enforcement, the police cannot but be brutal. Structured as the policeman's duties are around mythical non-existent concepts of "private property," beastiality is assured.
When the new left says that not merely the individual cop, but the system itself is to blame, they are correct. The mixed economy (which New Leftists are fond of referring to as capitalism), they explain, is the demon: unmix it—seize and distribute all property—and the police would no longer have cause for brutality: indeed, the police would wither away. Again they are correct (if only in part): the mixed economy is the fundamental source of police brutality.
Correct also to say that the solution is to alter the system, to unmix the economy, but in which direction? The mixed economy (alternatively referred to as the welfare state) is a mixture between a free economy and a totalitarian state, embodying some attributes of each of its components. In practice this means that some areas and aspects of human action are controlled by the State, and some areas and aspects are not.
Essentially, the New Left argues for further controls in America's mixed economy (this despite their apparent concern with "freedom" and "controlling one's own destiny," and their unprincipled opposition to certain crimes by the state, such as the draft), the amount and type dependent on the specific group or individual questioned. While it is outside the scope of these notes to dissect the New Left's position (or that of any other group) vis-a-vis the police, after I finish here the reader should be amply capable of doing that himself.
The thesis I wish to demonstrate here, and the one which in the doing must reveal the brutality debates as intellectually sparse, is that, of the three political alternatives, a free economy, a mixed economy, a totalitarian state, only one provides the economic, political, and cultural context in which systematic police brutality cannot be a problem: a free society.
If the current debates over police brutality prove inconclusive, it should hardly surprise inveterate Reasoners. Consider the term "brutality" and the debater's apprehension of the word, Although at first glance "brutality" might seem of obvious enough definition, recourse to a dictionary and careful attention to the method(s) used by debaters to discriminate cases of "brutality" from those of "non-brutality" would indicate otherwise.
"Befitting or resembling a brute; of, relating to, or typical of beasts," are the two relevant definitions the dictionary offers. Advocates of a conceptually-oriented theory of psychology will immediately see at least one source of the debaters' confusion. It would hardly be much of a guess to say that most, if not all, of those engaged in such debates are advocates or victims of the numerous no-mind psychological theories that predominate the culture. As such, they would have no consistent method to separate acts of brutality from non-brutality—as the endless debates well illustrate. Certainly the phrase "police brutality" does not refer specifically to the act of a policeman striking a citizen. Commentators on the subject will admit this much, if only vaguely, when (and if) they warn television viewers: "tonight's film of the police bust at X University does not show the 'whole picture.'" (Reports of provocation, of bottles and stones thrown at police, then follows.) Thus, albeit sloppily, some considerations of a conceptual nature are allowed to be of importance in determining the veracity of brutality charges.
"Brutality" is not a lower order concept that refers to some particular action or class of action as does, for example, the term "murder." Attempting to use the word as if it were a lower order concept leads to some odd contradictions. If brutality refers to that which is typical of beasts, of animals, and if macing a citizen is brutal per se, well, have you ever heard of an animal macing its prey?
Rather, brutality is a higher order concept, as is, for instance, the concept "value." One cannot point to some existent, say a chair, and say, "that is value"; instead (if one is to be consistent), one must mean that the chair is of value to someone. The chair is not a value in and of itself apriori of human needs and desires. Value is a mental concept; so is brutality.
Thus, one cannot merely view a film of a cop clubbing a student and declare apriori further data that what one has seen is or is not brutality. One must first determine why the incident took place: what happened before the filming and beyond camera range; what legal strictures and contractual agreements were in force at the time; most essentially, what was on the minds of the participants (this list isn't exhaustive).
The essential difference between human and animal, between man and beast is man's capacity for rational thought. When one says of a person that he acts like a beast, rationally one means that that person acts outside the limits reason and self-interest would sanction; that he is acting against his nature as a rational being. The specific action we see as irrelevant, for under differing circumstances the same action can be rational or irrational. What is of concern is the quality of the mental operations of the person in question. In the case of the policeman beating the kid, the policeman's motivation could be either rational or irrational, the effects of his action either just or unjust, his actions befitting of either man or beast. We don't know. And neither do the debaters, despite their assertions to the contrary.
To be fair, it should be said that not all those concerned with brutality depend entirely on this mechanicalistic view of human action, and also, that in certain circumstances it is possible to determine from news films alone cases of brutality.
I recently saw an extremely telling film on a local newscast of the weatherman rampages in Chicago in October (1969). You'll recall that a police official was struck by a brick in that melee, and paralyzed as a result. The film showed the man prone in the street sometime after the incident and a girl (of unmentioned identity) kneeling beside him; the weathermen were some unknown distance from the scene. A group of riot police came over the unconscious man, picked him up, and began to carry him off to an unknown (by me) location, perhaps to the sidewalk, perhaps to a waiting police van. At this, the girl leaped up and screamed, "Don't move him, don't move him. You'll kill him." Which is true enough, as anyone who's taken a first aid course can testify. The police ignored the girl, and sobbing and screaming, she began beating her fists against the back of one of the officers. Two more policemen came into view and restrained the girl by the arms. When she tried to wrest away, someone said, "Book her," and the two policemen carried her off.
Now, I think that this is a pretty clear case of unthinking action on the part of the police. If there was good reason to move the man, a stretcher is certainly not too much to ask of the police of a civilized nation. Possibly the weathermen were on the rampage at that moment and headed for the scene, but the film did not seem to indicate this. And the arresting of the girl, while something I was hardly surprised to see, was inappropriate. But even as clear as the events appeared to be, I hesitate passing unqualified judgement without speaking to participants. The camera is a passive item that captures, within the limits of its design, what is before it. It cannot understand what is happening or why, or even cover the whole scene, and it most certainly cannot perceive directly the thoughts of the participants.
Now I have demonstrated what brutality is not: it is not a class of actions connected by some physical similarity, but instead a class of actions connected by a similarity of intention or mental state of the actor, that is, a class of actions connected by a conceptual similarity.
In the introduction I alluded to the need to transpose the term brutality if the analysis were to be truly central, really relevant. "Brutality", it should be sufficiently clear by now, is a term inadequate to cope with the problem it describes. The fundamental issue is not brutality, but force: who uses it, how, and why. Force must be of first and primary importance, as it is force that is a police department's most essential service.
With respect to their effects on other men, a policeman's (or any man's) actions may be divided into two broad categories: those which are coercive and those which are not. Coercive actions (or non-actions, which I mean to include here in the concept "actions") are those which deprive other men of their rightful range of choice. Non-coercive actions are those which do not deprive other men of their rightful range of choice.
Here is an example of a coercive act (which, incidentally, involves a non-action). A man rents a car in exchange for payment and a promise that he will return it on time. He maliciously fails to return it on time, thus committing an act of coercion: preventing the rental agency from carrying out their decision as to what next to do with their car. The errant rentee has deprived the agency of their car, their rightful ability to carry out their plans, and any values the agency might have gained from the planned employment of the car.
Although the rentee used no weapon in the conventional sense, he nevertheless prevented the agency from exercising its right to dispose of its property in whatever way it sees fit.
Note that by this analysis, acts of coercion may be committed without weapon, through inaction as well as through action, and at considerable distance from the victim. If coercion is deemed evil (and there is excellent literature proving that it is), it is easily seen that the current controversy over brutality is diversionary—or worse. Only a small percentage of police action is "brutal," in the figurative, bloody sense. Yet a large portion is coercive. To the observer seriously concerned with issues of morality, it hardly matters that police do not mace every person they arrest. It's nice that they don't, certainly, but as has been indicated, there is more than one way to bludgeon a citizen. Instead of throwing a man in a cell and letting him starve, the state can simply and "nonviolently" siege the contents of his bank account, and starve him that way. In an advanced-technology welfare state, the weapons of enforcement available to police are numerous, effective, and subtle. In the coming cashless society, for example, the computer will become increasingly useful as a tool of instant confiscation, just as the invention of paper money has already allowed the state to exercise enormous control over the economy.
The concepts of coercion and non-coercion, although better than "brutality" (or "non-violence," another Establishment favorite) for studying the morality of police work, are still not enough. They must be parted into yet another pair of terms, which will finally provide sufficient base for analysis. The culture has these concepts, but because the explicitly formulated moral precepts to support them are still lacking, like bullets without a gun, there is no reason to bring them forth.
The concepts derive from observing that there are two conceptually differentiable forms of force: the first, embodied in actions designed to gain the actor an unearned value; the second, embodied in actions designed to preserve and protect an earned value from the effects of actions of the first variety.
Actions of the first variety, actions of a parasitical or destructive nature, represent initiatory force. Actions of the second variety represent retaliatory force. There is a fundamental difference in the moral status of those who commit one or the other of these two varieties of force, but because there is good literature quite explicit on the topic, I needn't spend time on it. A warning, however, is in order. While there is good material available concerned with principles of force, there is little coherent on the subject of applications of force: how to determine when initiatory force (crime) has been committed, how to determine motive, how most rationally to retaliate, how to decide when retaliatory force has overstepped its moral bounds and become initiatory force, and so forth.
Initiatory force, the province of the criminal, is wrong because it deprives the victim of his rightful range of choice. If a man has a right to his life, liberty, and property, he has a certain range of choice that must be said to be his by right, derived from his right to life, liberty and property, initiatory force deprives him of that range and may, of course, deprive him of material value as well. Note that "coercion" and "initiatory force" have the same definition, and are synonymous. The purpose of this duplication, to the extent that there is one, would seem to be to allow one to construct the concept-sets (coercive/ non-coercive, initiatory/retaliatory force) useful as discussion of slightly different problems.
At this point the pacifists in the audience might stop me to ask, "But what about retaliatory force? Isn't that coercion?"(Meanwhile, a couple of Establishment hacks in the front row will be heard to mutter, "Violence is violence. It's all the same.") Well, of course, proving that this is not so, that retaliatory force is not coercion, must of necessity be a task of central importance in these notes, for without this link, the consistent reader must conclude that a police force is morally unjustifiable.
Coercion is that which deprives men of their rightful range of choice. Note: rightful. Now it is true that retaliatory force deprives the person against whom it is launched the full range of choice he would have had had it not been for retaliation. But so long as it remains only retaliatory force, the choices of which it deprives the criminal are not his by right.
As example: suppose I were to announce my intentions of levitating the Pan Am building in NYC if its owners did not ship me within seven days $100,000 worth of aluminum foil balls. Now suppose another man, hired by the owners of the building, took actions appropriate to prevent the commission of this dire deed (gluing down the buildings, taking away my magic wand). While it is true that the activities of the Pan Am building agent (at least the removal of my wand) do represent force against me, they do not constitute coercion, for it is not within my right to levitate (or threaten levitation of) the Pan Am building, it not being my property and there not existing any agreements establishing my prerogative. It was I, then, who initiated, or more precisely, threatened to initiate, force. The owners simply responded. Observe: My threat came first; I initiated. Their action came second, after mine; they retaliated. If a man has a right to his life, liberty and property, then it follows he has a right to protect those rights from aggression, and to demand retribution from those who succeed in violating his rights. From this stems the right to self-defense and from that, the justification for police services. Rather than every citizen carrying sidearms, it is recognized that policework, like any other skill, does well by a division of labor. Thus, the police department comes into existence.
In a free and rational society, the proper role and moral justification of the police is the protection of human rights through the use of (exclusively) retaliatory force. Some of the specific kinds of services this protection requires includes bodyguard and watchman duties, investigation of (alleged) crimes, arrest of suspects, operation of courts (to try suspects and settle disputes), plus running prisons and retribution agencies. (Note that I am using the phrase "police work" alternatively to refer to the operation of agencies of retaliatory force in general, and the cop on the beat in specific.) Ideally, the purpose of the police is to protect the interests of honest (non-coercive) citizens against the criminal acts of the dishonest.
In order for the police of a free society to act in pursuit of justice there must exist a body of general rules ("laws") delineating the moral perimeters of human interaction. If the enforcement of these laws is not to subvert the moral justification of the police force, the laws must not require the initiation of force against morally innocent citizens. Should the laws require initiation, there would be at least two immediate consequences. First, the society would no longer be free, since freedom (in the political sense) means freedom from coercion. Second, the police would become, in principle, criminals in uniform (or in a society in which the police force wasn't fortunate enough to be able to afford uniforms, just plain criminals). That these laws might have been "passed" in the name of justice would not alter the matter: justice demands that every man be treated precisely as he deserves. Clearly, coercion of the non-coercive—treating the innocent as if they were criminals—is not just. In an important respect, the police of a criminal legal system are worse than common criminals. The common criminal one can retaliate against—by hiring a cop. But what happens when the cops become criminals? Where does one turn?
There is a third consequence (that should concern us here) when the laws of a society begin to require coercion for enforcement, and this is the immediate and long range psychological effects on the police. The following section of these notes considers the question.
Economists of the Austrian school have produced an immense quantity of material demonstrating the adverse effects of disconnecting (through coercion) the risks and consequences of an activity from its participants. They have applied their principles to an amazing assortment of coercive and non-coercive activities, demonstrating in each case the impracticality of the former variety and the short and long range advantages of the latter. The expense and impracticality of the draft, the financial inanity of social security, the irrelevancy of the moon shot, the sluggish monster of the postal service, have all been topics of discussion in various journals of libertarian economic thought. Very few economists, however (as far as my limited reading would indicate), have applied their principles to police work, even police work is just a service, like insurance or fire protection. (I recognize that some readers might contend that force is an extra-market phenomenon. I don't, however, think this objection can be logically upheld. While initiatory force is market-distorting, retaliatory force, which is what the police of a free economy would be using exclusively, is non-coercive and therefore not market-distorting.) Viewing the police in an economic light provides an interesting way to demonstrate that police brutality is an inevitable outcome of a disintegrating welfare state, and to show the workings of one very important set of factors that provide incentives against any form of brutality on a free market. Unfortunately for the completeness of such an analysis, while there are more than enough examples available of what happens to the police of a mixed economy, there is no similar material on the police of a free society—such a system has never existed.
The aspect which subsumes (it is implicit in) the most others is the fact that the police of a free society operate under full liability, while the police of a mixed economy operate under limited liability. In a full liability legal system(s) liability for the actions of persons or groups of persons is assumed by those persons morally responsible (either those who acted or those who contractually consented to accept a portion or all the risks or benefits of said actions), and is not to be directly or indirectly forced via the legal system on innocent third parties. A full liability legal system is a free legal system or a free economy—the terms are synonymous. A free economy might not (probably wouldn't) be entirely free from random coercion, and the reader would be justified in pointing out my earlier claim "freedom means freedom from coercion" seems to clash with this. What I mean by a free economy is one in which all acts of coercion are recognized and treated as such, in which perpetrators of crimes are made to pay retribution to the victims, and criminals of an obviously violent or recalcitrant nature are confined and rehabilitated at their own expense (all this within the limits of economic profitability and human knowledge).
Full liability and freedom are equivalent. Every action has inherent in it a certain amount of liability (or consequence); "limited" liability cannot diminish that total, only force morally innocent people to assume some or all of the total. Full liability means that only those morally accountable bear the legal burden of the consequences (whether viewed as beneficial or detrimental) of actions. Wide scale coercion can exist only in a limited liability matrix, and is, in fact, the thread with which such a matrix is woven.
The police of a free society, engaging in retaliatory force only, enforcing laws of a defensive nature only, would be bound by the same laws they enforced, and would stand fully accountable for their actions. They would obtain special privileges from other parties only with and by those parties' voluntary consent, and only if such consent and privileges did not violate existing contracts and the rights of any person. A highway patrolman, for example, could operate his vehicle in a highly unorthodox manner in the pursuit of a suspect, if and only if, he had the permission of the road owner and the unusual driving could not be construed as violating the rights of other road users (including the suspect). In the event that a free society cop did initiate force, he would be held as legally accountable as any private citizen. ( In fact, the concept set "public/private," in the context it is used here, would disappear from the language of a fully free society. There would be no "public" vs. "private", only voluntary associations.)
Compare this system with the limited liability cops of today. First of all, most of the laws which police enforce today are inherently unjust and initiatory (see other articles in this issue). However, this is not a sufficient condition to make police (and society) of limited liability. One further condition must (and does) exist; that the legal system of which the police in question are a part be the only legal system with jurisdiction over the citizens involved, or that if other legal systems do have jurisdiction they be of the same fundamental character as the offending one.
If the legal structure of a society is unjust, then like every other person and enterprise within that legal system, police and police departments will be accountable for only a portion of the full liability of their actions. As it stands in America today, the police aid in the trampling of rights on such a massive scale that there is hardly a word sufficiently descriptive. Limited liability? The price of retribution due to the victims of the crimes committed by police on any single day would be beyond calculation, yet not only do these crimes go undenounced (for the most part), and the perpetrators, police and politicians, unpunished, but, even worse, the victims are forced through taxes to finance the operation and salaries of the criminals.
But there is an aspect to the structure of this country's (and, I would guess, every welfare state's) system which serves to even further reduce the policeman's liability far below that of the average citizen's. Through a combination of specific legislative acts, departmental procedures, monopolistic default, and the general effect and aura of the laws they enforce, police have come to a point where, to one degree or another, they are above the law. Not only may (and do) and must police squash rights within the law, but, the degree depending on circumstances and motive, they may also do so outside the law. Here the reader is referred to a paperback released in September by Vintage: Police Power, (a study of police abuses in New York City) by Paul Chevigny. While I can't vouch for the book's accuracy, the cases discussed and the transcripts quoted indicate how the police can use the law in a style and spirit and for purposes not consonant with a legal ideal of freedom. Police Power also indicates, if incompletely and from faulty premises, the nature and degree of the special legal status contemporary police enjoy. Since these notes are not meant as a critical evaluation of today's cops I won't spend much time reviewing the book, but several references would be helpful to my thesis.
The introduction states: "This is not a book about sensational police scandals, either of corruption or of the third degree. It does not deal, and is not intended to deal, with the macabre excesses of the police as they are occasionally recorded in the newspapers, but rather with the routine details of due process of law by false arrest, by unlawful search, and by 'summary punishment'—police brutality."
The book describes a number of New York City street scenes (and ensuing legal procedures) in which a policeman, after acting unwisely, slaps an innocent (and sometimes, to the policeman's chagrin, eminently respected) citizen with a "cover" charge of disorderly conduct, resisting arrest, or even assaulting a police officer. The District Attorney then generally offers to drop the charges against the citizen in exchange for a waiver of any civil charges against the cop. If a citizen refuses, since he has little chance of proving himself innocent of the charges placed against himself, (a policeman's word is almost never questioned except when respected citizens are involved), he also has little chance of winning a civil case against his police assailant: the citizen now has a criminal record and is an "unreliable" witness.
Also described are illegal search and seizure, frames, systematic harassment of hippies, commies, perverts, bums, and other social outcasts, mass police actions, police reactions to criticism and defiance (verbal or otherwise), and firearms deployment. Several other books that I read in preparation for these notes, but which weren't as valuable, were Behind the Shield by Arthur Niederhoffer (an ex-cop), (days in the life of a rookie), Walking The Beat by Gene Radano (another ex-cop), and The Tarnished Badge by Ralph Lee Smith. Of the three, the last is the most relevant here. Smith covers police scandals in several cities involving gambling, safecracking, burglaries, ticket-fixing, and "protection." Also described is the procedure by which citizens of Chicago may register complaints against their police.
Several of the things that allow police to stand above the law include the secrecy and tightknit quality of the police force, the personnel rules that characterize departments, and the comparative homogeneity of outlook among police (due to preselection, attrition, and assimilation). The Tarnished Badge contains much material that indicates how these three procedures operate.
Here, for example, is part of an interview that Smith conducted with a convicted cop-burglar:
Smith: "When did you first get an inkling that things weren't on the up-and-up?"
Ex-Cop: "It didn't take long. We had four weeks of training and then went on the job as probationary patrolmen. I was a pretty eager cop, and right away, I caught two burglars stealing a generator from a warehouse. It turned out that they were both policemen. What could I do? I was a rookie on probation and it would have been my word against theirs. On the force, if you don't shut up and go along you don't last out your probation. One or two bad reports on you filed by veteran cops and you're dropped without even being told why."
Elsewhere in the book the code that had bound the police of the burglar's department is described: if you're crooked, then you're one of us, and that's fine, but if you're good, you'd do well to keep quiet if you enjoy being a cop. Among police there is nothing considered fouler than for one cop to squeal on another, no matter what evil has been committed.
This ends the brief discussion of limited and full police liability. What are the effects on police of each system?
Under full liability, individuals are rewarded in proportion with their success or failure. The pleasure/pain reaction works in harmony with, not in opposition to, the facts of reality. Even the most shiftless individual would be careful not to damage what isn't his (assuming he isn't masochistic), if only because he doesn't want to spend the rest of his lazy life working to pay back the damages. Even setting aside the essential fact that any society that implemented full liability would have to be comprised primarily of rational men in the first place, such a system would provide all sorts of negative and positive feedback to discourage parasitism and encourage self-sufficiency.
Under limited liability, the exact opposite is true. Crime is rewarded; honesty, punished. Such institutionalized inversion, together with the ideas that predominate such a society, churns out hordes of crooks. It's only logical; when men see that (or believe) their "self-interest" is served by stepping on others, and only by stepping on others, and when the philosophies of the day tell them that this—endless, irresolvable strife among men—is exactly what life requires and all they can ever expect, well, how else but as a horde of crooks might you expect that society to end up?
Whatever effects the two systems have on ordinary citizens, it will be even more pronounced with the police, as under either system police will be selected for their unswerving allegiance to explicit or implicit ethical norms embodied in the political structure. In a free society, conscientious law enforcement officers would be exactly what the police apologists of every state in history have claimed their cops were: guardians of justice. Because all the laws that they enforced would be rational, defensive, and noncoercive, police could honestly be called, for the first time in history, both law enforcers and protectors of rights. Under these laws, the men police would be seeking (assuming they had decent investigators) would always be criminals, (that is, men who had initiated force against some particular victim(s)) rather than, as in the present system, innocent men who happen to "break" one of the state's coercive laws. The police, perhaps more than most citizens, would be aware of the sharp line dividing right from wrong, honesty from dishonesty. To the extent they acted within the law, police would be heroes. To the extent they didn't, they would be criminals, and treated as such: they would be required to pay full retribution to their victims. Ask yourself: under such a system, what sort of man would be attracted to police work?
The police of a mixed economy, like those of a free economy, are enforcers of the law, but unlike the free economy variety, welfare state police cannot claim to be protectors of rights. The laws of a mixed economy are a random mixture of coercive and non-coercive statutes, but since even the laws of a seemingly admirable quality (laws against theft, for instance) are perverted by a penal system that concentrates, not on restitution to the victims, but on "punishment" of the criminals, justice is not served, rights are not protected. The system is not based on justice, but on vengeance.
To compound this injustice, the victims are forced (via taxes) to finance the prisons in which their assailants then get years of free room and board. The police of a mixed economy obtain their "customers," not through hard work and long thought on a free market, but through coercion: taxation and monopoly by force. Under the laws of the land (and those the police enforce on their own), most of the people the police seek are not criminals at all. Even in the event of the police capturing a real criminal, the kind of treatment the criminal receives after conviction (prison term of arbitrary state decreed length) is a violation of his rights (and those of the victim, certainly, since the victim receives no retribution, nor has any legal alternative by which to obtain it).
Meanwhile, the police will be found to be committing the exact same acts that they are shoving people in cages for: breaking the law (placing numbers bets, purchasing illegal weapons) and committing crimes (killing unarmed suspects, extortion of businessmen). The moral psychology of the mixed economy cop is not merely fuzzy, lacking in distinctions of right and wrong, but inverted to punish the innocent. So long as a policeman appears to act within the nominal limits of the law, he is not legally liable for any of his actions, no matter how morally vile. As yourself: under these conditions, what sort of man will be attracted to, and remain in, police work? There are two possibilities: the man who is not concerned with issues of justice and morality or the man who does not know the meanings of the words. Either kind is not to be trusted with a gun and certainly not with the sanctity of the law.
To sum up, then, what are the incentives of a full liability system against brutality? First of all, and most important, consider the sort of people who predominate the system.
If, in order to achieve a free society, men must be rational, once established, that society tends to provide continuing economic incentives towards rationality. All economic commodities, including police services, reflect the workings of these incentives. In speaking of "political systems," what one actually refers to are the people and the nature of their interrelationships. No "system" is better than—or represents anything more than—the people who comprise it.
If one assumes a cultural context in which men do choose to exercise rationality (no small assumption for most modern philosophers), the incentives against brutality become obvious. Brutality, whether overt or covert, practiced by criminals or those masquerading as police, becomes plainly economically unfeasible.
So long as men thought there was sufficient gain to be had by preventing some particular sort of crime or prosecuting some particular criminal, they would do so. There would, of course, probably be some minor acts of brutality committed on a random basis that men might find no profit in abdicating, yet even so, the market would tend to deter any prevalence, for as a certain type of rights-violation increased in frequency or magnitude, the profit to be derived from preventing or adjudicating that kind of crime would automatically increase. But in any event, any statist objection based on the free market's inability to handle "uneconomical" cases of rights-violation is foolish, for no social structure can supersede the laws of supply and demand.
In a free society, every act of coercion, including those by police agencies, would be a source of potential profit for honest men. Under the full liability matrix of a free society, the convicted criminal would be required to repay not only immediate damages caused by his crime, but interest on the damages, and most important here, some portion of the sum the victim had to pay to bring the criminal to justice. (Exactly how large a portion, I don't know and would like to hear from readers who might know.)
Here, then, is one way in which the elimination of specific acts of criminality would tend to increase profits (of police agencies and related firms) and, thus, incentive. Insurance companies would also be intensely concerned with reducing brutality, for it is one area where their costs could be cut with comparative ease.
The police agency that allowed its officers to run mad through the streets wouldn't last much longer than the supermarket that sold tainted food. Both would quickly be driven off the market by boycotts, legal action, or both.
One of the important sources of what critics call police brutality is the dependence of police on weapons that achieve their effect through bodily damage that, unfortunately, is often permanently disabling or lethal. The repertoire of the ordinary patrolman is revolver, blackjack, and nightstick. All are lethal, if the patrolman desires them to be—and often he has no choice. These three, however, are mild compared to certain special equipment that police have been getting into since the slum riots: Stoners, machine guns, cannons, armored vehicles, gas grenades. It isn't simple coincidence that effective non-lethal weapons (with the exception of mace, which is only marginally useful). Not only are today's policemen often not required to stand trial for the killing of a suspect, but on occasion they have actually been explicitly ordered to kill, most notably during the slum riots, in which police in several cities were ordered to "shoot to kill" unarmed looters. Obviously, there is no economic incentive towards non-brutality in the area of weapons for the police of today.
As the police of a free society would be held legally accountable for every weapon deployment, they would be certain to want the least dangerous, most effective weapons technology could offer. Thus, a whole field which has stagnated for decades under the monopolistic effects of state power would blossom into an entirely different kind of enterprise, whose products would be rated, not on their capacity for producing death, but on their ability to promote justice. (How does a dead looter help a bereaved store owner?) In a free society, the gas-propelled drug-filled dart guns (or some equivalent) which have been on the American market for years would be a standard police weapon (if, of course, police carried weapons at all—the police of some countries seem to get along fine without).
As in a free society force would always be men's last reluctant resort, the public could be expected to harbor a strong dislike of weaponry in general. Here, then, is another incentive towards non-brutality: The police force whose men went around looking like portable arsenals probably wouldn't have too many customers—who wants to get shot breaking into one's own house after losing the key?
One of the most important factors that would distinguish the police forces of a free economy from those of the mixed economy would be the police themselves. This much has been briefly characterized in the preceding section. As those interested in criminology will know, as technology has advanced police work has become less and less an unskilled job and more and more a full-fledged profession. In a free economy the process of professionalization would accelerate. The free economy police force, dependent upon the voluntary support of its customers; unencumbered by the unprofitable and psychologically degrading need to enforce "crimes against the state," such as narcotics legislature; unobstructed by the supposed moral requisite that police departments provide free service to anyone who demands it, regardless of their ability or willingness to pay; unburdened by absurd, arbitrary labor practices, bureaucracy, and the other senseless practices that develop in every state controlled, run, or owned operation; and guided by rational standards of profit and loss, and moral standards of right and wrong, would quickly evolve into the efficient professional organization that police forces of today should be.
The police departments of a free society would be the last place a fat, unskilled, stupid, bigoted, anti-intellectual, racist, brutal, corrupt, power-seeking, trigger-happy, neurotic, latently homosexual thief would look for work. Does a medical quack seek the notice of competent doctors? Would a criminal seek to work among the most honest, law-abiding men of society—just the men most likely to turn him in at the slightest indication of dishonesty? The answer is clear.
Because the laws of a free society would be consonant with the facts of reality; because they would be designed to protect the rights of man, not the privileges of the state; because "law-making" would be not a political matter but scientific one done, not by legislators (who pass laws), but by college professors and social science R and D firms (who would discover laws), the "crimes" of a free society would really be crimes: each one would have a victim, and would be committed by a real criminal. The police would be able to make very clear distinctions between right and wrong, and there would exist the least possibility of quick, arbitrary actions which, upon retrospection, would be found to have been acts of brutality. There would exist an air of clear-headedness and cool rationality even among (particularly among) those whose job it was to physically apprehend violent criminals. Competent police of a free economy would have the incomparable psychological advantage of knowing that what they were doing was right, not because the law said so, but because the facts of reality said so.
Due to the automatic respect granted them by most people, the single specific instrumentality for the extension, implementation, and encouragement of brutality are the laws of a society and the process by which they are enacted. The effects of a free economy on the science of law would be similar to those on the science of weaponry: it would be almost totally transformed, from its present task of serving the state (and the vested interests created by the state), to the task of serving the people.
Today, if a man discovers the existence of a hitherto unnoticed rights-violation, he would do best not to mention it, for in all likelihood the government's response will be not to adjudicate the crime but to set up yet another regulatory agency and thus place a new damper on man's creative faculties. And if he comes up with an elegant legal technique to solve a recognized crime, he will probably be laughed out of court. (As example, consider the treatment afforded those who attempt to sue an environmental polluter, or those who press charges against universities for their part in promoting campus riots.) Faced with an almost (there are always magazines like this one) nil market conditions, it is not surprising that legal theorists spend their time devising means to extend the power of the state, rather than the liberty of the people. It's just supply and demand.
It shouldn't be hard to see how, once freed from the degenerating effects of a socialized legal structure, the philosophy of law would become a highly profitable (particularly during the initial period of decontrolling the economy, when a great number of problems would have to be solved in quick succession) area of endeavor, and a major weapon against brutality. After all, until one discovers the principles by which to distinguish brutality from non-brutality, one has no means by which to combat brutality.
This marks the end of this month's notes. I don't expect the reader to accept the material here as proof conclusive—it isn't meant to be. But at the very least the reader should now be aware how far from precise or rational are the statements and critiques concerning the police being offered by the mass media-recognized polemicists of the "left" and "right." Since the only group even pretending to offer a consistent and radical solution to the problem of police brutality is the New Left, perhaps it is appropriate to end these notes with a comment on their "consistent and radical" solution, the complete socialization of the economy. Let us put it in the form of a question: Isn't it ironic—and telling—that the police force with which the socialist New Left finds so much to fault, is, in sum, a socialist institution?
This article originally appeared in print under the headline "The Cops: Heroes or Villains?".