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Ferguson is our "libertarian moment," but not in the way some libertarians want you to believe

By Mark Ames , written on September 25, 2014

From The News Desk

“Make the users (i.e., the criminals) pay the costs, wherever possible.”

—Robert Poole, Reason

Ferguson is starting to heat up again, with more violence, more police crackdowns. And yet we never quite figured out how to make sense of the shocking scenes from last month, which left us little to hold onto beyond lingering outrage. Besides the general sense of horror, the question that still hasn’t really been answered is: Whose fault is Ferguson?

Ferguson happened to explode just as the New York Times Sunday magazine declared August “Libertarian Moment Month” — so it’s no surprise that many leading libertarians responded to Ferguson by claiming that the St. Louis suburb’s nightmare was living proof that libertarianism’s “moment” had arrived.

Nick Gillespie, online editor of Libertarian house magazine, Reason, crowed about “The Libertarian Moment in Ferguson,” claiming the country was finally waking up to police issues that “libertarians have been raising for decades”; his former colleague Dave Weigel snapped — “Libertarians are asking: What took you so long?”; and the Daddy Warbucks of libertarianism, oil & chemicals giant Koch Industries, boasted that “we’ve worked for decades” on police and criminal justice reform. What gives them so much credibility, libertarians are arguing, is their “decades”-long track record of pushing for libertarian reforms of America’s police departments and its criminal justice system.

It's this "decades" of work on police and criminal justice that libertarians insist gives them their unique credibility. That and their slick pitch man, Rand Paul, who wowed Establishment Liberals with his Time magazine snoozer on "police militarization."

Let’s leave aside for now the weirdness of using Rand Paul — a paranoid gun-nut who wants to weaponize every nook and cranny of American life, from arming all school teachers as the answer to Sandy Hook, to arming our border with a giant “underground electric fence, with helicopter stations to respond quickly to breaches of the border” (to be fair, Paul’s spokesman clarified his mega-fence vision as a "combination of thermal imaging, satellite technology, motion detection and helicopters at key checkpoints”) — as the libertarian pitch-man against police militarization. Or the fact that Michael Brown was killed by a non-militarized cop. The point is this: Libertarians say that Ferguson proves we’re at the Libertarian Moment, and that they’ve been developing the answers to our current police and criminal justice problems “for decades.”

And the scary thing is, they’re right: Libertarians have been coming up with reform programs for our city police and criminal justice systems for a long time. In fact, some of these reforms have actually become law in places like Ferguson.

Take the shocking "discovery" — actually years in the making — that Ferguson shifted many of its revenue burdens away from taxpayers and onto something the New Yorker described as the city’s “offender-funded” justice system, designed to “shift the financial burden of probation directly onto the probationers.... charging petty offenders — such as those with traffic debts — for a government service that was once free.”

Many decades ago, libertarian author Robert Poole, one of the leading brain bugs of libertarianism and one of the Koch brothers’ longest-serving lieutenants, proposed exactly this sort of system in his pioneering handbook on government privatization, “Cutting Back City Hall” published in 1980:

“Make the users (i.e., the criminals) pay the costs, wherever possible.”

Poole’s book is considered by many the first American policy handbook on mass government privatization. (Poole's and Reason's claims that he "coined" privatization have been challenged, most recently in the Journal of Economic Perspectives, which made the case that "privatization" was first coined and implemented in Nazi Germany in the mid-late 1930s.)

Poole’s writings in the mid-late 1970s for Reason magazine (which he edited) and the Reason Foundation (which he co-founded, both with the Kochs’ support) provided the neoliberal blueprints for Thatcherism, as recounted by one of her advisers and hagiographers:

“The intellectual case for ‘contracting out’ came from an American MIT-trained engineer turned policy wonk, Bob Poole, head of the Reason Foundation in Santa Barbara and author of a little book called ‘Cutting Back City Hall.’ In this book he explained how all you needed to run a city was a CEO, a lawyer to review contracts and a secretary. Everything — literally everything — could be outsourced and he littered his book with examples and figures....[Thatcher advisor Michael Forsyth] translated Poole’s work into an English context and, led by the Westminster City Council, ‘contracting out’ spread like a contagious disease throughout the country.”

Contracting was just one of many forms of privatization proposed by Poole in "Cutting Back City Hall.” Poole was particularly interested in finding ways to privatize America's police departments and its criminal justice system, and in his handbook, Poole proposed replacing taxpayer-funded police departments with private contractors — Poole named Pinkerton, Burns and Wackenhut as three fine examples. The only thing holding America back in 1980, he lamented, was the country's “attitude problem — that somehow only government should be providing police services...”

Reason Poole Thatcher Koch 2006 Privatization Report

More relevant to Ferguson, Poole proposed shifting as much of the costs of the criminal justice system onto the criminals — the “users” as he put it — in order to cut taxes and budgets:

“To date, it has always been assumed that the taxpayers must assume the full burden of court costs in criminal matters. But once the idea that the criminal is responsible for the costs imposed on the victim is established, the next logical step is to extend the idea to court costs.”

Poole lamented in his blueprint that the country was still not ready in 1980, and he warned his policymaker readers to expect resistance at the local level if they tried to push through programs transferring the costs for criminal justice (and policing) from general taxpayers to “users.” But one thing that Poole and Reason are very proud of is how they brought ideas from the fringes to the mainstream — and Ferguson is a prime example of how Poole’s neoliberal blueprints on privatizing criminal justice were eventually adopted in cities across the country.

In Ferguson’s offender-fee system, city revenues from traffic fines make up 21% of the city budget and continue soaring. Those revenues are squeezed mostly from black drivers — 86% of motorists stopped in Ferguson are African-American, well above their 63% portion of the town’s population.

An NPR investigation earlier this year, “Guilty And Charged,” revealed how this Poole-inspired “user-fee” system — “Court Fees Bill Defendants For Their Punishment” — is now a standard feature in cities and towns everywhere:

“NPR's investigations unit found that the practices in Ferguson are common across the country. The series reported that nationwide, the costs of the justice system are billed increasingly to defendants and offenders, and that this creates harsher treatment of the poor.”

In Poole's chapter on privatizing the criminal justice system, he proposed “restitution” as a cost-saving measure:

“Restitution represents an application of the user-pays principle to the criminal justice system — with the ‘user’ in this case being the system’s ‘client,’ the criminal.”

To Poole, user fees and “restitution” are just as much a part of the privatization program as volunteer citizen patrols and local "self-defense" protections, of the sort that Trayvon Martin's killer George Zimmerman participated in, under the protection of libertarian-backed Stand Your Ground laws.

Here is Poole heralding the benefits of bringing back criminal restitution from the horse-and-buggy days:

“An even more promising concept is restitution (payment of compensation by the offender to the victim), an idea that has been largely forgotten in the development of American criminal law....The heart of such a program is a contract negotiated between the offender and the victim, and sanctioned by the court. AS a condition of release from jail, the offender agrees to go to work under supervised conditions, with his or her earnings divided among several uses: compensating the victim, supporting the offender’s own family, paying taxes, and defraying the costs of the program.”

“Failure to live up to the contractual obligations is grounds for returning the offender to the lockup.” However, as Poole wrote, this still left taxpayers on the hook:

“[A]lthough restitution offers some relief to the specific victims of crime, it does little to unburden the taxpayers, who must still foot the bill for the costs of operating the criminal court system.”

And that, of course, led him to propose cities shifting the burden of funding the criminal justice system onto its “users" — a concept considered crackpot when he proposed it, but today is part of mainstream political reality.

In 1981, a year after Poole’s privatization primer was published, Reason magazine — under Poole’s direction — promoted what it called “The St. Louis Solution” as the answer to America’s urban problems. “The St. Louis Solution” described how wealthy city neighborhoods took advantage of segregation-era laws allowing residents to privatize their streets, and so keep undesirables off of their “private property.”

St. Louis is unusual for its private streets, a local law that dates back to city's robber baron rulers in the 1800s. St. Louis' private street laws were revived in the 1950s during the backlash against the Civil Rights movement. According to St. Louis Law School professor Roger Goldman, St. Louis’ unique “form of discrimination that surprises visitors from other cities is the large number of private streets that they see as keeping undesirables out, i.e., blacks.”

Ladue, Missouri — the richest suburb in St. Louis — features all-private streets. It is the “St. Louis Solution” personified. Ladue also has a 1.0% black population. A few years ago, Ladue’s police chief was fired for refusing to target black drivers who passed through the city limits. Following the Robert Poole blueprint, Ladue sought to cover its $300,000 city budget shortfall through “offender fees” — traffic tickets — rather than by raising taxes on its millionaire homeowners. In 2006, African-Americans made up 22.5% of traffic stops by Ladue police in a town where they were only 1% of the population.

But for the libertarian pioneers at Robert Poole’s Reason magazine, racial segregation resulting from private streets was a small price to pay for the “St. Louis Solution.” At most, Reason conceded to the “unsettling fact that in the West End of St. Louis the area north of Delmar is predominantly black and poor while the private streets and surrounding residential area south of Delmar are predominantly white and middle-class.”

That little detail aside, Reason cheerfully concluded that private streets "work" — and should be expanded across the country, so long as privatized streets are matched by massive local tax cuts:

“[T]he existing evidence on private streets looks promising. For the St. Louis Solution to work on a large scale, though, local municipalities must give residents and merchants tax incentives.”

Indeed.

Poole’s role as the Thomas Paine of privatization was something he and his libertarian colleagues at Reason have long been proud of, although ever since the national mood started to sour on privatization post-Katrina, Reason has tended to play down its decades-old record as the country's leading privatization policy mill, and instead over-emphasize more popular causes like pot legalization and ending the War On Drugs.

Today “privatization” is so entrenched, such a part of mainstream orthodoxy in both political parties (and the central plank of the fake third option, Libertarianism), it’s hard to believe that privatization was once considered crackpot Social Darwinism just four decades ago. But Poole was a right-wing renegade who floated all sorts of extreme politics for their time, many of which have been adopted, others — like Reason magazine’s promotion of Holocaust deniers, and its many articles defending white-rule apartheid in South Africa, all published under Poole’s editorial watch — were later buried. Of course, Poole’s courageous libertarian proposals to privatize every corner of our lives owe something to his powerful sponsors — a Pentagon DARPA contractor, General Research Corporation, which funded Poole’s first research into privatizing America’s cities; and the Koch brothers, who began funding Poole’s Reason magazine in the early 1970s, and helped Poole set up the Reason Foundation, the seminal neoliberal ideas mill for privatizing every granular corner of our public space.

* * * *

“law enforcement, like any other service, is essentially a business activity.”

—Robert Poole

Poole’s “Cutting Back City Hall” features an enthusiastic forward by President Nixon’s former Treasury Secretary, William Simon — a godfather of the New Right who famously praised Pinochet for “restoring economic freedom” in 1976. Besides running the rightwing Olin Foundation and partnering with neocon godfather Irving Kristol, Simon also served on the Reason Foundation’s Advisory Board (and on the board of another early Charles Koch front-group, the "Council for a Competitive Economy"). So it’s not so much his praise for Poole that jolts, but rather Simon’s praise for what he described as Poole’s “subversive” intent:

“Poole’s aim is to truly subvert...to develop local and free-market solutions to local problems.”

Poole’s privatization primer is divided into chapters that each describe how to privatize a different sphere of local government. After two introductory chapters, Poole’s book gets down to the nuts and bolts of privatizing police departments (Chapter 3), privatizing the criminal justice system (Chapter 4), fire departments (Chapter 5), and so on... down to privatizing libraries and museums (chapter 8), privatizing daycare and welfare services (chapter 10) and finally, privatizing America’s K-12 public schools (chapter 14).

Poole book contents1

With Ferguson on everyone’s mind, let’s look at Poole’s libertarian blueprint for privatizing city police departments — Chapter 3.

Poole starts off his chapter on privatizing police departments by declaring that law enforcement is “essentially a business activity" requiring business solutions, not democratic solutions. The only thing standing in the way of police departments' needed business solutions was what Poole called America's “attitude problem.”

Poole book Police1 business activity

Poole’s first police privatization proposal was a variant on the “user-fee” idea: allowing wealthier communities to create home owners associations by privatizing their neighborhoods, and hiring their own private police force accountable to their association funders, or "users." Poorer communities who can’t afford to pay for private police services should instead organize volunteer “citizen patrol units” of the sort George Zimmerman belonged to, according to Poole:

“the net effect of these private patrol activities ...is to reduce the demand for city police services and therefore to reduce the city police budget. What occurs is a transfer of the patrol function from the public sector to the private sector...”

But since Poole recognized that late-1970s America wasn't ready to allow rich neighborhoods to own their own police forces and wall off the rest of the country, Poole proposed another solution: “Private Contracting.” Here, Poole called on city officials to downsize their police forces and replace them with private security contractors like the notorious union-busters Pinkerton,  and Wackenhut, the notorious private arm of J Edgar's Red-baiting campaigns, and a major player in today's private prison industry:

“In many cases it may not be politically feasible, at this time, to shift large portions of police activity to a user-pays basis. But the cost of policing may still be reduced, by having the city purchased the service from the private sector.

...There are many firms able and willing to provide some form of police service. The private security industry — typified by industry leaders Burns, Globe, Pinkerton’s, and Wackenhut — has grown very rapidly over the past decade.” The only impediment to this libertarian utopia was the American sheeple and their collectivist mindset:

“What seems to be involved is an attitude problem — that somehow only government should be providing police services and that private firms are at best a temporary expedient or a supplement.”

That, and historical memory. The La Follette Senate Committee hearings in the late 1930s discovered that private security companies including Pinkerton and Burns — who had a history of violent, deadly attacks on labor organizers — had amassed huge arsenals that put government police departments to shame:

“more tear and sickening gas and gas equipment than has been purchased…by any law-enforcement body, local, State or Federal in the country.”

This discovery led to federal laws banning Pinkerton and Burns from storing or owning poison gasses and machine guns. Poole, however, proposed unleashing those very same private firms on Americans, if only we’d get over our “attitude problem.”

The main thing, according to Reason’s early blueprint, is to hold down police labor costs in order to save taxpayers money. Even his proposals to save money through fewer patrols would barely make a dent, as Poole explains:

“Vehicles, though, are not the major police department expense — people are. Over 90% of a typical police department budget consists of salaries and fringe benefits. Thus, most measures for economizing must in some way reduce personnel costs.”

Poole’s proposals for lowering personnel costs include replacing police officers with “lower-paid employees” or “civilians”; a “police assistant program” in which “18-to-20 year old civilians respond in patrol cars to noncrime calls”; handling more distress calls “over the phone” rather than by sending expensive police officers in expensive cars to personally respond to distress calls; and of course citizen vigilante patrols, which Stand Your Ground laws help empower.

No wonder libertarians from Radley Balko to the Cato Institute were so protective over their precious Stand Your Ground laws during the Trayvon Martin trial.

Finally, Poole reveals an interesting factoid: In the late 1970s, America already had anywhere from 500,000 to 1 million private security people in uniform, compared to 500,000 state and local police. In other words, even before mass privatization, America already had between one and two private cops for every publicly-funded cop. Does anyone keep the stats on this today? Good luck trying to find it. How many people are killed, injured, or violated by private cops? How many private security police are there? How many vigilante patrols and Stand Your Ground murders, injuries, civil liberties violations? Do we have any idea how private cops and private sector spooks violate our privacy and our rights? Who watches them? Why can’t we FOIA their activities? Who the Hell are they? Do we even know their names?

Chapter Four, "Criminal Justice" — lays out the blueprints for shifting the costs onto "users, i.e., criminals" — and suggests a host of other privatization policies including shifting court proceedings in both civil and criminal cases to private arbitration courts (still a novel idea in 1980). Despite Poole's long consistent call for ending the War On Drugs and legalizing drugs, including in the privatization primer, he coupled that with a call for drastically upping the incarceration rate of "actual felons." In the opening of this chapter, he claimed he'd researched the criminal justice system in Alameda County — home to Oakland and Berkeley's leftwing radical activists in 1973, the year of Poole's study — and found that "only 1.7% of all reported felonies, or 0.7% of all actual felonies" committed resulted in convictions:

"the majority of offenders are not arrested, the majority of the arrestees are not convicted, and the majority of convicted defendants are not incarcerated.”

Poole's privatized criminal justice system would:

  • Make justice swift and sure.
  • Make the users (i.e., the criminals) pay the costs, wherever possible.

Besides making criminals pay restitution to both victims and to cover the costs of arresting, trying and jailing them, Poole proposed installing PROMIS software in prosecutors' offices around the country. PROMIS, as some people might recall, was a controversial database software used by the CIA and NSA to monitor people around the globe.

 * * * * 

“Four years ago when I was writing Cutting Back City Hall, the editor winced at my use of the term ‘privatization.’ Today, the term appears in the title of a book endorsed by people such as David Stockman, and nobody bats an eye.”

—Robert Poole, 1983

In 1971, when libertarianism was still a budding project of a handful of wealthy right-wing MIT grads — the Koch brothers, Poole, and Poole’s former MIT roommate, David Nolan, founder of the Libertarian Party — Poole laid out his strategy for transforming "statist" America into "laissez-faire" America. Since laissez-faire libertarians would always be a tiny minority, Poole wrote, they should organize in tight-knit groups and "permeate" strategic levers of power. He cited Opus Dei under dictator General Franco in Spain, and the economic technocrats under Brazil's military junta that year, as two examples that libertarians could emulate.

A decade later, as the Thatcher and Reagan Revolutions were under way, Poole was boasting that his privatization ideas had gone mainstream, and that his libertarian comrades in Reason had “permeated” several areas of the Reagan White House. Among the policies touted in Reason magazine was the idea of privatizing America’s correction facilities — and privatizing prison inmate labor. By 1985, Poole’s Reason boasted that its efforts to bring prison privatization mainstream were finally paying off:

“It’s always a pleasure to watch as a good idea, once dismissed as ‘impractical’ or ‘dangerous’ or ‘pie in the sky,’ finally takes hold. Currently, there is just such an excellent public policy idea whose time is arriving. It is privatizing prisons.

"REASON has reported in the past on firms such as Corrections Corporation of America that are running penal institutions efficiently, humanely, cheaply — and at a profit. And recently there’s been evidence that the most powerful councils of the public policy establishment are taking notice.

“The real obstacle to successful prison privatization has been lack of public understanding and acceptance. Fortunately, as the issue gets more and more scrutiny from policymakers and journalists, that should change for the better.” It took the election of libertarian governor Gary Johnson in New Mexico in 1994 to launch prison privatization as we know it today. The results of Gary Johnson’s prison privatizations were disastrous from the point of view of the public interest, but a success for libertarians and their sponsors. And thanks to cultural amnesia, even after all the inflated cost overruns, corruption scandals and deadly prison riots in New Mexico, today, most people only know Gary Johnson as that whacky libertarian pol who wants to legalize pot. It’s the libertarian grift again, the ol' bait-and-switch repeated ad nauseum. Meanwhile, Robert Poole’s Reason Foundation continues to beat the drum for prison privatizations, issuing reports and surveys down to the granular level, touting the benefits of privatizing prison health care and contracting prison food services, year after year after year.

Are you getting the point yet? Because I’ve still only just scratched the surface of how Robert Poole and his Reason Foundation designed the blueprints for our local political economy — from Poole's role in privatizing America's highways, roads and infrastructure, to his proposals to privatize public school custodial services, right down to the "offender-funded" nightmare in Ferguson. They were there at the start, and they’re bigger today than they’ve ever been, brain bugs to both parties and to post-ideological “centrists” like what Gov. Schwarzenegger claimed to be.

The point being: When the libertarians at Reason and Koch Industries claim that they’ve been offering a consistent program on reforming America’s police and criminal system for “decades,” they’re telling the truth. But when they claim that Ferguson’s problem is that no one’s listened to the libertarians until now, they’re flat-out lying.

Ferguson is our Libertarian Moment — and it isn’t going to end anytime soon.

[illustration by Brad Jonas for Pando]