Liberty, Property, and Crime

No society can long exist in a climate of rampant crime, especially if it is properly defined as any act that violates the life, liberty, or property of another. and when the term “crime” is used, that is generally what people mean. Of course many people, perhaps most, would also include victimless crimes such as drug use or prostitution, but their principal definition would entail real victims.

Crime is a worrisome issue and rightly so. Solutions to crime problems are always of interest to policymakers, law enforcers, and potential victims. One solution to the crime problem has been the “broken window” policy that has been used in New York City. The term “broken window” comes from a 1982 essay written by professors James Q. Wilson and George L. Kelling.

The basic premise of this policy is, as Wilson explains, “Small disorders lead to larger and larger ones, and perhaps even to crime.” Wilson and Kelling posit the breaking of a window in a building. Kids walking past the building assume that no one cares about the windows since the broken one is left unfixed. So they throw rocks and break a few other windows. Now it appears that no one cares about what happens on this street, and soon other buildings are damaged. And then: “Only the young, the criminal, or the foolhardy have any business on an unprotected avenue, and so more and more citizens will abandon the street to those they assume prowl it.”¹

In their original article Wilson and Kelling argue: “serious street crime flourishes in areas in which disorderly behavior goes unchecked. The unchecked panhandler is, in effect, the first broken window. Muggers and robbers, whether opportunistic or professional, believe they reduce their chances of being caught or even identified if they operate on streets where potential victims are already intimidated by prevailing conditions. If the neighborhood cannot keep a bothersome panhandler from annoying passersby, the thief may reason, it is even less likely to call the police to identify a potential mugger or to interfere if that mugging actually takes place.”²

The broken-window illustration may be a bit strained, but certainly many of the issues that Wilson and Kelling raise are not. They note that if homeless people are allowed to congregate and live in public parks, crime quickly follows. A concentration of adult shops in one small area, like Times Square or Boston’s “Combat Zone” has the same effect. If five or six adult shops are operating in a two-block area, they may well attract street prostitutes. Along with the prostitutes come pimps and often drug dealers. Many of the prostitutes use drugs, and the dealers are only too happy to be where their customers work. But the dealers also attract other users who may be quite willing to commit an armed robbery or two to finance their drug use. Of course as these groups of people are attracted to the area, other groups are discouraged from living or shopping there. Grocery stores may close down. Families may move out. The streets become a haven for the most marginalized segments of society. And this type of blight can easily spread to surrounding areas as well. All in all it’s not a pretty picture.

Now who is responsible for all this? Who brought on this explosion of crime since the 1960s? Kelling, in his book Fixing Broken Windows, written with Catherine Coles of Harvard’s Kennedy School of Government, says the culprits are libertarians. His visceral dislike of libertarians is evident throughout his book. Crime is a problem of social disorder, and social disorder is caused when libertarians successfully push for individual rights and liberty.

Libertarians would be shocked to learn that their ideology is the reigning concept of criminal justice in America, let alone responsible for all sorts of ills. Kelling and Coles write: “[F]irst, a broad societal ideology holds certain individual rights as absolute and virtually divorced from responsibility and obligation. This ideology gave rise to the idea that all forms of nonviolent deviance should be tolerated in the interest of liberty—a belief that order maintenance confronts directly. Second, the reigning criminal justice strategy is consistent with this libertarian ideology.”³

Again they make their position clear: “The increase in urban disorder that has occurred in the past thirty years, in many senses, is rooted in these very changes: the emphasis on individual rights tied to the culture of individualism helped spur an increase in deviant behavior on city streets.”⁴ Elsewhere they speak of “radical libertarians who would perpetuate urban chaos in the name of ‘liberty interests’ and exaggerated fear of police abuses.”⁵ So not only does libertarianism lead to crime but it leads to “urban chaos” as well!

Rights and the Common Good

It should come as no surprise that Kelling, Coles, and Wilson all argue that individual rights have to be compromised in the name of the social good. They see this as a “tension between ‘rights’ proponents, who argue that curbing disorderly conduct, often described by them as ‘speech’ or expressive behavior, violates their fundamental liberties, and ‘communitarians’ or ‘universalists,’ who contend that the rights of individuals must at times give way to communal values and structures so that basic order can be maintained in a larger community.”⁶

Anti-libertarian John Gray takes this to even further extremes. Gray referred to the “ongoing implosion of the United States” in his book Endgames.⁷ In Enlightenment’s Wake he predicted “the likelihood in the United States is of a slow slide into ungovernability.”⁸ Kelling, Wilson, and Coles see libertarianism as leading to crime and urban chaos. Gray argues it is leading to the destruction of Western civilization, but the process is the same: “The libertarian condemnation of the state and celebration of the free market is a recipe for social breakdown and political instability.”⁹ “Communities,” Gray writes, “need shelter from the gale of market competition, else they will be scattered to the winds.”¹⁰

According to the “broken window” theory, libertarianism, by promoting individual rights and “liberty interests,” is causing the decay of urban society. Cumulatively, Gray writes, this is leading to the destruction of Western society. When New York City cracked down on what had been considered minor acts of disorder, a major drop in crime followed. For these theorists this proves that subjugating individual rights and liberty is the way for society to achieve stability and peace. And if this were true, it would be a telling indictment of the evils of libertarianism. But is this true?

Theory Confirmed?

Kelling and Coles present varied examples that they believe confirm their theory. Looking at them individually is informative. One example they use, in several chapters, is the effect of the “homeless” on the general climate of San Francisco. They write: “For example, in San Francisco, city workers attempting to carry out cleaning and maintenance activities in public parks, plazas, and streets were physically threatened by people living in encampments there, and faced significant health risks from having to pick up debris consisting of needles, human waste, and garbage. In addition, these encampments became centers for drug use, crack cocaine dealing, and theft that spilled over into surrounding neighborhoods. Individuals intoxicated by alcohol or drugs lounged and slept in doorways of businesses or even homes, and intimidated residents, customers and pedestrians.”

This description, if anything, is too restrained. Kelling and Coles are absolutely right. As an ex-San Franciscan myself I witnessed exactly this type of decay. And on a visit to the city a couple of years ago it was clear that this problem had escalated.

But how is libertarianism responsible for this problem? Presumably giving these people the right to camp out on the mall next to City Hall is a “liberty interest.” Yet while liberty is a fundamental principle of libertarian thinking, it is not the only principle. Issues of rights and property also apply. And libertarians have long pointed out that when property is communally owned, conflicts automatically arise. Where are the “homeless” building their encampments? According to Kelling and Coles, this is taking place “in public parks, plazas, and streets”—on public, not private, property.

San Francisco offers a striking lesson about property rights. The famed cable car has a line that runs from Powell and Market Streets to Fisherman’s Wharf. At the beginning of the line the streets are dirty. Drugged-out or alcoholic derelicts harass those waiting in line for the cable cars. Street preachers walk through the crowd screaming their message of hell fire and brimstone at tourists who don’t appreciate the gesture. The entire experience is not one that people relish. But after disembarking the tourist finds Pier 39, which juts out into San Francisco Bay. The pier itself is larger than the area around Powell and Market. It is a couple of blocks long and filled with dozens and dozens of shops and restaurants. It has small plazas where entertainers perform. It is clean. It is safe. And there are no derelicts or unwanted evangelists harassing customers.

Why this difference? Pier 39 is run privately.

Rights Rooted in Property

Rights are exercised in a physical world. Man is not an ethereal creature floating in some abstract universe. When rights are exercised they are exercised on property and often require the use of property. A man who drinks himself into a stupor in his living room uses liquor that he paid for and passes out on a floor he owns. The same action in a park or on a public street takes place on property that is supposedly “commonly” owned. The conflict created by his actions exists only because the property is held socialistically instead of privately. Disney World doesn’t have problems with drug use on the streets or drunken panhandlers harassing people waiting for one of the rides. It doesn’t have the problem because it owns the property on which such actions would take place and has every right to stop such actions. Communal ownership creates conflicts that private property helps avert.

Court rulings that allow public drunkenness, panhandling, or a variety of other “disorderly” conduct do so because they apply to public, not private property. Libertarians have often been condemned for their fervent belief that privatization of “public” resources would solve a myriad of problems. Yet in this case they are also blamed for the results of policies that go completely contrary to their recommendations.

Anyone who has lived in San Francisco for any period knows that the city is a magnet for the so-called homeless. Many of these people are alcoholics or drug addicts. Most are single men, not mothers with children, as socialists like to pretend. So what draws these derelicts to the city? The city government is quite generous with the public purse. A “homeless” man in San Francisco will not only qualify for Social Security benefits and for state benefits, but also the city’s own dole. To qualify for this extra money, one only needs to live in the city for 24 hours.

Radical socialist groups in the city, which hate libertarians with a passion, have pushed through policies that forbid rousting these people from public property. No park, no plaza, no street is safe. Once a critical level of disorderly individuals congregates, the area suffers in every way. How are libertarians responsible? What “liberty interest” is there in having access to other people’s money? How are advocates of private property responsible for the problems associated with public property?

Subway Panhandlers

Kelling and Coles also point to the problems of panhandlers on the New York subway system. But once again, the subways in New York are government property. While originally privately built, the subway companies were forced out of business by government price regulations. The city then proclaimed a “market” failure and took control. By the ’60s panhandling, public drunkenness, and the like became a problem.

Other examples of social disorder that Kelling and Coles refer to include prostitution and adult bookshops. Libertarian Lysander Spooner drew the distinction between crimes and vices in the middle of the nineteenth century. Since then libertarians have argued for the legality of “anything that’s peaceful.” Yet prostitutes hanging around outside an apartment complex bring down the neighborhood in many ways. Doesn’t this violate someone’s rights?

Kelling and Coles tell of the prostitution problem in San Francisco’s Tenderloin neighborhood: “Most persons opposed to prostitution in San Francisco’s Tenderloin area, for example, are not prudish vigilantes concerned about commercial sex as a matter of principle. They simply object to the promiscuous behavior of prostitutes and johns, who publicly commit sex acts in parked cars, discard prophylactics and needles on sidewalks, door stoops, and in public parks, unmindful of the play of children, and who disregard public requests for some circumspection in their behavior.”¹¹

Yet the prostitutes are using public property—sidewalks, street corners, and parks—to promote their trade. The situation isn’t optimal for them. It exposes them to the elements and to criminals and other dangers. But since prostitution is illegal, it is difficult to operate out of one location. A brothel operating openly would be closed down immediately in most major cities. The illegality of the business forces prostitutes to use public property. But when a government regulation forces individuals to use public property, who gets the blame? Why, free-market, private-property libertarians of course.

A few miles from my home in Johannesburg there was an infamous brothel named The Ranch. It operated in one of the most up-market suburbs in the city. It was widely advertised and widely known. The general reluctance of South African police to enforce any law had led to the de facto decriminalization of prostitution. Yet streetwalkers were a relative rarity. Instead, dozens of brothels, like The Ranch, appeared around the city. When The Ranch’s owner publicly complained about police corruption, he was immediately targeted. Using asset-forfeiture laws copied from the United States, the police confiscated the massive mansion from which the brothel operated, along with the owner’s home, bank accounts, cars, and more.

Surprisingly, hundreds of people gathered outside The Ranch to protest this persecution. Many were workers from the brothel, upset that they were now unemployed. But many were housewives and other neighbors who lived on the same street. Almost without exception, these people said The Ranch had been a good neighbor. One woman, who lived on the street, said she never even realized that the brothel was there. All the deficits that Kelling and Coles lament seemed absent, because while prostitution was de facto legal, the women and their clients preferred the safety of the house. When liberty interests were allowed to operate within the confines of private property, the notorious and noxious results of prostitution were absent.

The same appears to be true with adult sex shops. I walked through Times Square in New York City when it was the center of the porn trade there. It was a pretty sordid place. I’ve been in Boston’s “Combat Zone” and seen exactly the same results. Kelling and Coles seem to believe that this is simply the inevitable result of adult material and that banning it is the solution. But once again these noxious consequences are completely absent around adult shops in Johannesburg. Why?

Many local governments in the United States wanted to regulate pornography out of existence. But the Supreme Court ruled that the First Amendment would not allow this type of blatant censorship. The local politicians then tried to regulate it indirectly. A favorite method was zoning. Often one specified area of the city was designated an unofficial “red light” district. In other cases the laws were so restrictive that only a few small areas would qualify for these businesses. The result was that shops were forced to concentrate in a tiny area of the city, with all the noxious effects that Kelling and Coles describe.

In South Africa the Constitutional Court ruled the old apartheid censorship laws invalid. Without any regulatory system in place dozens of mom-and-pop porn shops opened, scattered throughout the country and all across the major cities. Since there are no special zoning restrictions, they are not concentrated in one neighborhood. The locations vary: up-market areas, near shopping centers, on the periphery of residential areas, and in working-class neighborhoods. In my day-to-day driving around the city I must pass around 20 of these shops. Prostitutes do not operate outside them since the customer level at any one shop is insufficient to provide them a lucrative return. That only comes about when several shops are forced onto the same street. There are also no pimps or drug dealers.

In a sense Wilson, Kelling, and Coles are correct. Given collective ownership of parks, plazas, streets, and sidewalks, various “deviants” will stake their own claims to these areas. To prevent social decay their “liberty interests” will have to be restricted. But liberty need not be sacrificed to order. As the masthead of Benjamin Tucker’s publication Liberty stated (paraphrasing Proudhon): “Liberty: not the daughter but the mother of order.” Certainly liberty unrestrained by property rights will lead to conflicts, but that is not libertarianism. A free market without property rights is a contradiction in terms. All the problems of social order that the “broken window” policy is meant to fix are direct results of the lack of private property. This being the case, the blame lies not with libertarians but with those who restrict private property, individual rights, and liberty.

Notes

1. James Q. Wilson, “Foreword” in George Kelling and Catherine Coles, Fixing Broken Windows (New York: The Free Press, 1996), p. xv.
2. James Q. Wilson and George L. Kelling, “The Police and Neighborhood Safety,” The Atlantic, March 1982, p. 34.
3. Kelling and Coles, p. 6.
4. Ibid., p. 42.
5. Ibid., p. 148.
6. Ibid., pp. 49–50.
7. John Gray, Endgames: Questions in Late Modern Political Thought (Cambridge, England: Polity Press, 1997), p.112.
8. John Gray, Enlightenment’s Wake: Politics and Culture at the Close of the Modern Age(London: Routledge, 1995), p. 24.
9. Gray, Endgames, p. 133.
10. Gray, Enlightenment’s Wake, p. 112.
11. Kelling and Coles, p. 4.