Let's focus on victim justice, not criminal justice.

Author:Benson, Bruce L.

The number of inmates in federal and state prisons in the United States fell slightly from its 2009 peak of 1,615,487 to 1,571,013 in 2012 (Carson and Golinelli 2013). This reduction allegedly provides "persuasive evidence of what some experts say is a 'sea change' in America's approach to criminal punishment" (Goode 2013), but a 2.75 percent reduction after a 500 percent increase over the previous three decades (Sentencing Project 2013) is far from a sea change. A true sea change would occur with decriminalization and a change in the focus of the entire "criminal justice" system--away from punishing criminals toward "victim justice" through compensation for victims. This essay proposes this very sea change, explores its feasibility, considers the institutional changes that would accompany it, and outlines its substantial benefits.

Decriminalization does not mean legalization when there is an identifiable victim. Violent and property offenses were not always crimes, but they have always been illegal. Before criminal law, they were treated as offenses against individuals (intentional torts) rather than as offenses against "society," the king, or the state (crimes) (Benson 1994a; 1998, 195-226; 2011, 11-30). Successful prosecution resulted in compensation to victims (restitution) rather than in fines or confiscations going to the state, physical punishment, and/or imprisonment. In other words, decriminalization means that individuals who intentionally harm others are liable for damage payments--victim justice.

Decriminalization also implies that public institutions currently involved in criminal justice would not have responsibility for pursuit, prosecution, or punishment. Instead, victims would seek compensation for harms they suffer, as in modern tort law. To do so, they would call upon mutual support arrangements and/or employ specialized individuals or firms, assuming true "privatization" of justice is allowed.

The term privatization has multiple meanings. Here it implies that private producers meet private demand for goods or services typically assumed to be functions of government. It does not mean transferring public agencies to the private sector, although such transfers may be part of the privatization process. It also does not mean government "contracting out" with private entities for production of goods or services. In fact, although various examples of private supply to meet government demand (e.g., prisons) are discussed later, this does not imply support for such government contracting out. These examples simply illustrate that the private sector can effectively provide such services. There are several concerns when private firms provide services demanded by government (e.g., prisons to punish criminals [Benson 1994b]) that would not arise with decriminalization and privatization. Nonetheless, the relevant privately produced actions to protect potential victims of and obtain justice for those who are victimized are analogous to the current mix of privately and publically produced actions to control crime. Both processes involve (1) watching to prevent intentional harms, but (2) if an offense occurs, the offense or its consequences must be observed, and if the observer (e.g., victim, witness) is unable to apprehend the offender, (3) then the offense must be reported to an investigator (e.g., public police, private security service, private investigator), who pursues the offender; (4) if apprehended, the offender must either admit guilt or be charged and prosecuted (by a public prosecutor, a victim, or a victim's private representative); (5) if the accused offender denies guilt, adjudication is required (through public courts or privately produced alternative dispute resolution), and if the accused is determined to be guilty, a sentence (punishment or compensation payment) must be determined; and (6) the sentence must be carried out (e.g., mandated punishment served or compensation paid). The consequences of decriminalization and privatization are illustrated in this article by examining actual private provision of actions (1) through (6) to illustrate that the private sector can effectively produce the relevant services and by predicting changes in their provision.

Stage 1: Prevention through Private Watching

Public police patrol on foot, in cars, and in aircraft, but these public activities are actually secondary sources of watching to prevent crime. Police tend to wait for crimes to be reported, and then they respond and pursue arrests. Therefore, most watching to prevent is privately produced, including significant levels of watching by voluntary organizations such as neighborhood-watch associations (Benson 1998, 80-86; 2011, 205-11), but the focus here is on market provision of such services in a narrower sense (i.e., private production to meet the demands of private individuals and organizations).

The major intended benefit of private security today is localized or "specific" deterrence for an individual target (e.g., person, home, or business), geographical area (e.g., neighborhood, private gated community, shopping mall, college campus, or business district), or specific activity (e.g., railroads in the United States are protected by private railroad police). Such focused specialization raises the expected costs for offenders against the protected entity, activity, or area by reducing the probability that criminals will succeed. Thus, for instance, residential communities protected by private security enjoy much lower crime rates than surrounding areas (Walsh, Donovan, and McNicholas 1992). The fact that market provision of crime prevention is substantial and growing rapidly suggests that private security effectively produces the specific deterrence that buyers demand.

The Private-Security Market

Table 1 indicates that over a little less than five decades U.S. employment by private firms specializing in protective and detective services increased by 1,177 percent, and the number of firms offering such services grew by 1,180 percent. The growth in the private-security market was more rapid through the last four decades of the twentieth century than it has been since then, presumably in part because of the rising crime rates that characterized much of the period before the early 1990s. Other determinants of demand are also important. Private security appears to be a normal good, for instance, so the rate of growth also correlates positively with changes in income (Benson and Meehan 2013). Other factors probably include changes in land-use patterns for housing and retailing that make the use of private security increasingly effective (e.g., the growth of gated communities and enclosed malls relative to urban neighborhoods and downtown retail areas). In addition, the perceived threat of terrorism and mass killings have led to increased demand for security by potential terrorist targets, colleges, and other institutions (discussed later). These data do not include direct employment of security personnel by nonsecurity firms, residential developments, or other institutions. Of four thousand firms surveyed in 2005, for instance, 56.5 percent reported using "proprietary security" (in-house security staff) rather than contracting with security firms (American Society of Industrial Security [ASIS] Foundation 2005). After examining a number of sources, Kevin Strom and his colleagues reported that about 60 percent of total security employment is by specialized security firms, and 40 percent is proprietary (2010, 4-4). In contrast, a 1991 National Institute of Justice study estimated that there were approximately 1.3 million private-security personnel at the time (Cunningham, Strauchs, and Van Meter 1990), when private-security firms employed 526,435, according to County Business Patterns (U.S. Bureau of the Census 1992)--that is, about 1.5 proprietary security personnel for each security firm employee. Proprietary security and specialized-firm-provided security are substitutes, so this apparent increasing portion of security provided by specialists suggests that the rapid growth in the security market implied by table 1 may reflect a substitution of firm-provided security for in-house security, in part because the quality of services provided by specialists has been increasing, as suggested later.

The private-security market also has grown rapidly relative to public police. A 1970 estimate reported that the number of privately employed proprietary and contractual security personnel was roughly equal to the number of public police, but by 1983 there reportedly were more than twice as many private-security personnel as public police (Reichman 1987, 247). A 1991 study reported a private security/public-police ratio of about 2.5 (Cunningham, Strauchs, and Van Meter 1990). In 2004, Elizabeth Joh contended that there were three private-security employees to every public-police officer.

Technological advances are lowering the cost of security equipment while simultaneously increasing its effectiveness. The percentage of companies purchasing various kinds of security technology reported in the ASIS Foundation (2005) survey of four thousand firms illustrates the range of options available. The most frequently purchased technologies were computer and network security-system technology (39.7 percent of respondents), monitoring and alarm technology (26.3 percent), closed-circuit television (23.8 percent), and video cameras (23.6 percent). More than 15 percent of the firms also purchased background investigation technology, security lighting, access-control technology, sensors and detectors, and badging/ID card printers. Between 10 and 15 percent reported purchasing electric/electromagnetic locks, two-way radios, safes and vaults, information-security technology, web-based security monitoring, digital video storage and retrieval technology, electronic access control, asset-tracking technology...

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