The Function of Government and the Criminality of the Justice System

by Anthony Gregory

Aside from national defense, most limited-government libertarians say that the only legitimate function of government, in a free society, is the criminal justice system – the police, courts, and prisons.  

To me, this system seems like one of the first ones we should scrap! Libertarians generally understand that the importance of a service does not mean it should be provided by the state. We often argue that specifically because such services as healthcare and education are so very important for the happiness and well-being of individuals, we must do all we can to prevent government from intervening in these areas in ways it hasn’t yet, and to remove government where it has already made a mess.  

Although all libertarians seem to understand these reasons for keeping healthcare and education in the private sector, many seem to believe that protecting rights to life, liberty, and property is so important – so very important – that it must be the government’s sole function. When asked why we should allow the state to handle this crucial function, they fall back on many of the same arguments that statists use to justify government involvement in healthcare and education.  

Looking at how well the government protects life, liberty and property, it’s hard to imagine how any entity could do worse. For one thing, almost all government activity is a direct affront to individual rights. A minarchist would be hard-pressed to defend the idea that governments protect rights more than they violate them. And yet, many insist that governments must protect life, liberty and property because that is supposedly the function of government.  

The function of something is properly defined by what that thing does. Most libertarians would admit that government in America – which plunders the people of about half their wealth, right off the bat, and then uses almost all of the loot to violate individual rights in myriad ways ­– is more damaging to liberty than not. And that’s America ! As far as domestic policy goes, most governments in the world treat their own people worse than the US government treats its own. Governments altogether have murdered more than 150 million people in the last century, not including war deaths. Some protection!  

If even the US government, founded by relatively classically liberal thinkers, is more inimical than beneficial to liberty, then from what government – in all in the world – can anyone draw the conclusion that the function of government is to protect liberty? Even if one or two governments protected liberty well, it would seem that the 99% of them that did not would make impossible the generalization that the “function of government” – even, “the proper function” of government – is to secure liberty. But since no governments really do so, it is a moot point.  

I can claim all I want that the function of a pencil is to make hamburgers. It doesn’t make it so. I can say that the “proper role” or “ideal function” or “optimal purpose” of a pencil is to make me hamburgers, but it still doesn’t mean that, when the day is done, the function of pencils is anything other than to write, and perhaps to chew on during hours of boredom.  

The function of government is not to protect life, liberty, and property – as much as I’d like to see those things protected. The function of government is to plunder, and to provide to those at the reins of the state with the loot stolen from those at the losing end. Sometimes it takes on other functions – kidnapping, brainwashing, torture, maiming, and murder. But the core function of government is theft. The core function is hardly to do something that it never has done – protect liberty.  

The true functions of government become urgently apparent in any serious look at the “justice system” in all its criminality. Half the people in prison should have been left completely free, and certainly would have been by any entity that actually does function to protect life, liberty and property. People such as Tommy Chong, Martha Stewart, and Bobby Fischer may have flaws, but they should hardly be treated to worse than what any humane person would want to see house-pets endure.  

Many on the Left will understand the criminality of John Ashcroft’s Justice Department, but interpret its actions as angelic in its treatment of “corporate criminals” such as Martha Stewart. Similarly, many on the Right will assume the very best of Ashcroft’s detention of drug dealers and so-called “Enemy Combatants” – even as the same institution puts a woman behind bars for the unproven “crime” of not being honest to government agents about victimless economic activity.  

Of the remaining half of those currently imprisoned in this country, about half of them should be forced, assuming they’re guilty, to make whole their victims through monetary restitution. Less than one quarter of the people in prison need any treatment more serious than this, and very few of them should ever be put in a cage. Of those that perhaps need to be caged, none should be exposed to the institutionalized brutal realities of the correctional system, where beatings and rapes are commonplace. It disgusts me to hear people speak of these rapes favorably and joyously. What justice is there when some prisoners – often the most brutal and criminal – are free to ravage and essentially enslave others?  

Of course, it’s even worse than that, since many of the people brutalized haven’t even committed any crimes, properly defined, and many of the people doing the brutalizing committed some of the worst crimes that one individual could ever do to another. The criminal justice system, much like the political system generally, turns justice on its head and rewards the worst elements in society.

(Some people in the prison system are so wretched that they do not deserve our sympathy. This probably could be said also about some victims of Soviet Russia and Nazi Germany. It is purely incidental that some vile characters who have suffered the brutality of these regimes happened to have had bad karma coming their way. The regimes, like the US prison system, were nevertheless inherently criminal, and intrinsically incompatible with civilized culture.)

There are, of course, normative problems as well. Aside from their sheer inhumanity, the prisons also serve to teach small-time offenders how to be big-time criminals. Drug dealers go in and come out bank robbers. Bank robbers go in and come out having been exposed to institutionalized rape, ready to inflict the violence to which they’ve been conditioned onto others. Rapists go in and come out ready to kill – and they usually come out before the drug dealers do, thanks to the criminal institution known as mandatory minimum sentencing.

This system perpetuates itself, trapping more and more Americans within, and growing at the behest of the prison guard lobby and with the gleeful cooperation of the politicians. America has the highest per-capita prison population in the world, many of whom are indeed vicious, slimy characters, but many more of whom do not deserve anything near the inhumane treatment one finds in the soul-destroying cages of a criminal system that has spawned a life of its own. Nothing better represents the parasitic and obdurate nature of the inexorably growing leviathan state than the despicably grotesque US criminal “justice system.”

On top of all these nightmares, the criminal justice system kills people. There are, of course, occasional shootings by prison guards, but I’m referring to that peculiar institution known as the death penalty, which even some libertarians still uphold. Now, obviously, there are crimes so vicious that the perpetrator has sacrificed his right to life. But how can anyone who pretends to understand the corruptible and inherently coercive essence of government ever defend the right of the state to kill people? Indeed, if some crimes are so demonic that the perpetrator has forfeited his right to exist, we have seen the state commit such crimes every day, and if in doing so it has logically relinquished its right to exist, even more fundamentally it must have relinquished its right to kill! After realizing that the state has killed one innocent in custody, all civilized people should have refused ever to allow the state to kill another captive man. The state’s execution of the innocent is even more a problem than many on the Left understand – and yet, many not on the Left, including libertarians, defend the institution of state executions, to the eternal discredit of their more enlightened positions, as perceived by the anti-execution Left. How can one take the idea of “limited government” seriously, after all, when so many of its visible proponents stand by a government not sufficiently limited to stop killing, even after it has proven itself quite inclined to kill the wrong people?

The prison system, the police, and the judges – for many limited-government libertarians, these are the elements for which we must preserve government and our faith in it. These are the parts of the state we must keep intact, even as we rid of all others. And yet, these are among the most gruesome and repressive, and among the most representative of the shortcomings and cruelty of the state itself. The criminal “justice system” has its selective enemies – but only the principled libertarian understands that the whole abomination must go, and only those who understand its threat to our life, liberty and happiness are totally principled in their opposition to state power.