Ep. 55 L.A. Prosecutor Defends Plea Bargains and Challenges Bob’s Vision of AnCap Law Enforcement
Patrick Frey has more than two decades of experience as a Los Angeles prosecutor. Although he is an enthusiastic fan of Austro-libertarianism, Frey comes on the show to challenge Bob’s views on plea deals and an-cap society..
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Mentioned in the Episode and Other Links of Interest:
- The Bob Murphy Show ep. 33 (on plea bargains).
- The Bob Murphy Show ep. 51 (on the death penalty).
- Patrick Frey’s personal blog and Twitter account.
- Join Tom Woods’ Liberty Classroom (where Bob has two courses).
- Tom Woods tries to discuss his new book on “Interview With a Zombie.”
- Bob’s pamphlet on private law, Chaos Theory.
- Bob’s lecture on private law, “The Market for Security.”
- How you can contribute to the Bob Murphy Show.
The audio production for this episode was provided by Podsworth Media.
About the author, Robert
Christian and economist, Chief Economist at infineo, and Senior Fellow with the Mises Institute.
I think one of the big disconnects between you two regarding a stateless society is easily resolved by making Ancapistan a self-selected society of ancaps. This immediately eliminates most of the monsters, by far. Since everyone else in such a self-selected society already agrees on the basic principles, resolving the “recalcitrant” problem isn’t a big deal at all. It seems Patrick is imagining an ancap takeover of the US with all the existing people and beliefs, which he’s right to point out would quickly burn to the ground because very few people in the US are ancaps.
Patrick’s earlier comments on plea bargains was interesting and revealing. My intuition is that Patrick is a good guy of well above-average intelligence who does good things for good reasons. Though I can’t help but think Patrick isn’t in a good position to be objective about this argument. I liked that he was able to add some legitimate nuance and pushback, though ultimately I don’t think Patrick addressed Bob’s ethical / economic argument head-on so much as he made an argument in the pattern of “the system works if you elect the right people.” Which has some truth to it…if you’re a minarchist.
A delightful chat — thank you both!
In the spirit of libertarian ecumenism to Mr Frey’s plea of “can’t we all just get along?” I say: “Mr. Frey may be a boot-licker, but by golly he’s our boot-licker”
[…] to his vision of a world without a government-run criminal justice system. Listen to the podcast at this link or by simply pressing play […]
Lots of interesting topics came up. One point that you both failed to cover is the question of contingent payments to witnesses (either expert or otherwise) … that is to say, you don’t merely compensate the witness for their time or for other problems they might encounter as a witness, but you compensate them only for a particular outcome … you buy the testimony itself.
The general situation is that contingent compensation is frowned upon (might be illegal depending on jurisdiction), but that’s exactly what is happening in the case of the plea bargain … you only get the “payment” contingent on pleading guilty. This is equivalent to paying the witness only if the result of the trial is a guilty verdict.
The case of the “snitch” is also a type of contingent compensation. Suppose the police agreed to relocate this “snitch” to a different area and protect the family, etc … then afterwards this person gives evidence in favour of the defendant, the police would be furious. Thus, the prosecutor protects themselves by ensuring they get some kind of signed statement ahead of time before offering any compensation. That is to all intents and purposes a contingent fee buying a witness.
I should be fair enough to point out that when the gang threatens witnesses, that’s illegal and they do it because it’s an effective technique to change the incentives. This represents a contingent payment in the reverse direction. If you use that as an excuse for the cops, that kind of heads into Dirty Harry territory … they are gonna break the rules … so we can’t be bothered following the rules either. Why bother having rules if the police don’t follow them?
“Lots of interesting topics came up. One point that you both failed to cover is the question of contingent payments to witnesses (either expert or otherwise) … that is to say, you don’t merely compensate the witness for their time or for other problems they might encounter as a witness, but you compensate them only for a particular outcome … you buy the testimony itself.”
Hi. I think I covered that in the podcast. The intent of witness protection programs is indeed to compensate a witness for problems they encounter. Relocation is never contingent on a witness giving a particular story.
“The general situation is that contingent compensation is frowned upon (might be illegal depending on jurisdiction), but that’s exactly what is happening in the case of the plea bargain … you only get the “payment” contingent on pleading guilty. This is equivalent to paying the witness only if the result of the trial is a guilty verdict.”
I think the situations are somewhat different. In the case of a witness, their testimony needs to be evaluated by a third party such as a jury. We try to be very careful not to give incentives that would cause someone to testify falsely, principally because we want the truth, and secondarily because the jury will learn about it and be more skeptical of the testimony. The plea bargain is different, in my opinion; we already have the evidence (if the system is working correctly) that the defendant is guilty, and while the plea is technically offered to a third party (the judge) as evidence of guilt, this is a matter of routine and the guilty plea is more of a mechanism to avoid the time and expense of trial than a mechanism to obtain a statement that will be evaluated by a neutral arbiter.
“The case of the “snitch” is also a type of contingent compensation. Suppose the police agreed to relocate this “snitch” to a different area and protect the family, etc … then afterwards this person gives evidence in favour of the defendant, the police would be furious. Thus, the prosecutor protects themselves by ensuring they get some kind of signed statement ahead of time before offering any compensation. That is to all intents and purposes a contingent fee buying a witness.”
As I said in the episode, we do attempt to get statements from witnesses who will be offered a deal, but the deal is contingent only on truthful testimony, not on testimony to a particular story — and a neutral judge decides whether the testimony is truthful.
“I should be fair enough to point out that when the gang threatens witnesses, that’s illegal and they do it because it’s an effective technique to change the incentives. This represents a contingent payment in the reverse direction. If you use that as an excuse for the cops, that kind of heads into Dirty Harry territory … they are gonna break the rules … so we can’t be bothered following the rules either. Why bother having rules if the police don’t follow them?”
I understand the concerns about “contingent payments” but as I expressed in the episode, I think there are safeguards in place, and they make sense generally as a way to compensate witnesses for the danger and/or expense suffered as a result of being witnesses.
All spoken in my personal capacity and not on behalf of my office.
Regarding police vs private security there’s a very fundamental difference in as much as the police have been able to disarm people and leave themselves without ANY ability to defend themselves (not in every jurisdiction, but in many places) this leaves people dependent on the police. Private security companies cannot force people to disarm, so if all the police went away a lot more people would be willing and able to defend themselves (the victim is always the “First Responder” and any police or private security by necessity must be the “Second Responders”) and then people would augment this self-defense with private security on top of that.
If you want to look at a parallel situation, there has been a big political argument in Victoria, Australia … over the volunteer fire brigades which are common in rural areas and the professional fire brigades (government employees and strongly unionized) and they are attempting to use government coercion to take control over the volunteers, force them to follow union decrees. It’s been a simmering and dirty dispute, I can find some links if anyone is interested or you can search it out for yourself.
Thin blue line types would subscribe to a police service that was ok with excessive force. So to fix that we will let these same people vote, and make everybody “subscribe” to a police service that uses excessive force… Also at the same time an ancap society would be too lax on recalcitrant members of society. Which is it, is an ancap society too lax or too harsh? surely it cant be both at the same time.
Where are the 5th Amendment rights to not being coerced into testifying against yourself in plea deals?
Take the deal he mentioned at the beginning of the episode. They offered him 6 years for a plea. So, they are saying, “For committing this crime, you deserve six years in prison.” But, if he doesn’t take the plea, and is found guilty, he would get 20 years. From the 7th through the 20th year, why would he me in jail? The answer can only be that he is in jail because he refused to “be a witness against himself.”
If we are sentencing people to an extra 14 years because they refuse to be a witness against themselves while making their plea, then you cannot say that a person is not being compelled to be a witness against himself.
In a plea deal, a defendant is absolutely being a witness against himself. He is first advised of all of his key constitutional rights, including the right against self-incrimination, and is advised that by entering a guilty plea he is waiving that right. He is then asked if he wants to waive his rights to make the deal.
Rights are waived all the time in order to enter into bargains. The question is whether it is done knowingly, intelligently, and voluntarily.
Stated on my own behalf and not for my office.
A fascinating conversation. Thank you both.
It is hard to imagine the ‘unseen’. One way to think about the process of justice in Ancapistan is to consider what is known about pre-state justice. The Tom Woods podcast had an interesting episode about ancient Irish ‘Brehon’ law, traditional Somali law looks intriguing and I’m sure it would be worth asking First Nation members about their traditions.
As far as I can see, traditional justice systems were focussed on restitution. Even medieval European countries had very few prisoners; too expensive to feed. The idea of locking someone up for years just makes no sense in Ancapistan. Who will pay for it? The current “enlightened” justice we see in the modern world is a product of the malincentives inherent in a powerful and monopolistic state that pays no heed to costs. Who cares how much the taxpayers pay?
If I recall correctly, in both Brehon and Somali systems, a key element was that every adult was vouched for by an older member of the community. Without a patron it was essentially impossible to work or trade. No one would trust you. If a dispute arose then the two patrons concerned would resolve the case (going to a mutually agreed judge if needed) & if restitution was agreed then the perpetrator’s patron and family would see it as a matter of honour to ensure that the money was paid.
In a traditional society these patrons/guarantors were family/clan members of good standing, but I suspect that in any future Ancapistan any adult wanting to work, rent or generally live would need to be a subscriber to some kind of insurance/assurance company/association/union/guild. Whatever these organisations would be called, they would represent their members in any dispute & people would have the incentive to comply with any restitution order if they wanted to continue to work and live in the community.
I have gone on too long. This is a fascinating subject and most of us are like Patrick, incapable of imagining anything other than the system we have now. The key is to remember that all monopolies are bad. All of them. Monopolies always lead to higher costs and worse outcomes. Always.
Who knows what systems would emerge in Ancapistan? What we do know is that the ingenuity of entrepreneurs would let loose multiple competing systems and that consumer preference would drive the evolution of whatever happened. And that the result could not fail to be cheaper and more effective than what we have now.
I very much enjoyed the episode. I’m happy to try to answer any questions people might have.
Fun talk. Patrick Frey didn’t really convince me that plea deals aren’t necessary. I think Patrick sounds like he is a good man, and extends that goodness to many undeserving, at least in his profession, as I notice in the second half his general stance on the population changes. When we have examples like Rudy Giuliani and Kamala Harris him saying most people there are honest seems very unconvincing. Not that I doubt many people get in with good intentions. Unlike most my libertarian brethren I think the vast amount of people become a police officer thinking they are doing a good thing. But the obvious rampant system abuse, obviously for personal gain, is very apparent at many points throughout history.
On the violent predators on property, Bob always seems to dodge the issue that he can just walk off his property and start killing again. So then you restrain him onto his property again until he does it again? His entire premise here is absurd and everytime he makes this argument he dodges the very obvious issue he can just leave again until restrained again, and you can do serious damage until then. And then society can spend more resources restraining him until he acts again. He’s not going to care about the fact he can’t go somewhere, he’ll just do it. Having spent a fair amount of my youth around shady people, Bob seems vastly naive in this area, at least with our current technological and cost restraints.
I always disagree with Bob on the nonviolent recovery issue. I have no issue with a business protecting their property by any means necessary. Or more so, I believe that for individuals, so it extends to business. Some people may vastly prefer a business that will protect them and their clients at a high level, I would personally. I don’t see what that has to do with ancapistan. Most anarchists I know are very fine with violence against offenders. Most advocate personal self defense as a very high moral priority.
Anyway, interesting episode. I enjoyed the guest!
Bob, would it be possible or make sense for your show to get Bill Anderson on to talk more about prosecutors and plea deals? He has done extensive, convincing work on the topic.
I enjoyed this episode. Patrick seems very willing to give the benefit of the doubt to his compatriots, and also very willing to to give no benefits to those he regularly deals with in a professional capacity.
It is interesting to me that he cannot envision a future without a set group overseers and enforcers. That he sees all efforts at fair an impartial judgement absent a government will lead to complete corruption, though, is a testament to how corrupt the current system is. He asks how a hypothetical system of justice could remain free of corruption using specific examples of corruption, not noticing that his hypothetical examples of corruption are exactly the same as the current types of corruption running rampant in the government controlled and overseen justice system. When was the last time he’s seen a criminal complaint that is not directed through a police officer or sheriff’s deputy (hereinafter police officer), it’s not a requirement to do so? When was the last time he’s witnessed a judge sign off on a search warrant that was not witnessed to by a police officer, and only by a police officer (even thought that is also not a requirement)? When there are only 2 witnesses to a crime, the complainant (aka police officer) and the defendant who does the judge invariably (with little exception) give preference to, even though the presumption of innocence would to doing otherwise?
As to the store’s private security, the Publix Super Market company contracts private security to shop the store looking for shoplifters. When stopped, then the local police are called. Anyone who shops Publix, or has bounced a check there, knows Publix doesn’t play when it comes to protecting it’s product. Seems to work pretty well.
The guest sounded like someone with good intentions, solid integrity, and reasonable intellectual curiosity, and he had some interesting insights into the system in which he works. However, even if everyone in the state’s criminal “justice” system were of his character, the system would still be fundamentally unjust relative to a free-market justice system for the following reasons: the professionals’ wages come from stolen money (taxes); the system uses force to maintain a monopoly on the provision of its services; the professionals don’t pay a direct cost for making mistakes; part of the job of the professionals is to enforce inherently unjust state edicts, in the form of victimless crimes; and the state is usurping victims’ rights (the state is never a “victim,” and is never explicitly appointed by actual victims to act on their behalf according to their directions and in their interests).
On a separate topic, there is one asymmetry in the system that was not addressed in the episode: it is prohibited for the defense to offer a quid pro quo to a witness (other than an expert witness) to testify, even though the state is allowed to do so.
In regards to the violent people he describes, they would no longer be self-owners as they clearly demonstrated that they do not possess that which differentiates man from animal. Would you reason with a man-eating tiger?
Of the points he makes about how terrible a free system would be, none of it sounds as bad as granting a paramilitary force impunity to beat us, imprison us in our homes, and murder whenever it suits them, as we have right now, as decided overtly by the state.
That which is, and that which might have been.
Good show.