Whatever the Market Will Bear

The phrase “whatever the market will bear” is typically used in economic discussions. Primarily, when discussing how fees for various products or services are set you’ll hear the phrase offered as some explanation for what is really exploitation of the market. It only works well in a non-competitive environment. Adam Smith, the pioneer of political economy who authored An Inquiry Into the Nature and Causes of the Wealth of Nations, would have considered the type of power — and unrestrained greed — that supports the idea of “whatever the market will bear” as a thing too terrible to imagine.

But then, Smith was passionate about liberty, reason, and free speech. He was a classical liberal, a believer in “natural liberty”, but not quite the free-wheeling laissez-faire libertarian those who frequently co-opt his theories apparently believe him to be.

Smith believed there was a danger in too much concentration of power which naturally occurs on the side of businesses and the rich in an unregulated environment. There are some interesting parallels between Smith’s concerns about the collusive nature of business interests and the problem of our dying Constitution and the consequent perversion of our criminal justice system.

Before moving on to draw the parallels, though, a little more about Smith’s ideas.

As the author of the Wikipedia article — though Wikipedia is a source that sometimes has to be taken with a grain of salt, I think this one gets it right — put things:

Self-interested competition in the free market, [Smith] argued, would tend to benefit society as a whole by keeping prices low, while still building in an incentive for a wide variety of goods and services. Nevertheless, he was wary of businessmen and warned of their “conspiracy against the public or in some other contrivance to raise prices.”[footnote deleted] Again and again Smith warned of the collusive nature of business interests, which may form cabals or monopolies, fixing the highest price “which can be squeezed out of the buyers”.[footnote deleted] Smith also warned that a true laissez-faire economy would quickly become a conspiracy of businesses and industry against consumers, with the former scheming to influence politics and legislation. Smith states that the interest of manufacturers and merchants “…in any particular branch of trade or manufactures, is always in some respects different from, and even opposite to, that of the public…The proposal of any new law or regulation of commerce which comes from this order, ought always to be listened to with great precaution, and ought never be adopted till after having been long and carefully examined, not only with the most scrupulous, but with the most suspicious attention.”[footnote deleted]

Smith also believed,

The subjects of every state ought to contribute towards the support of the government, as nearly as possible, in proportion to their respective abilities; that is, in proportion to the revenue which they respectively enjoy under the protection of the state.

and,

The rich should contribute to the public expense, not only in proportion to their revenue, but something more than in that proportion.

How amazing it is, then, that the rich and the conservative so frequently try to justify their dangerous and corrupting acquisition of power by relying upon Adam Smith.

But what has this to do with criminal defense and with the corruption of the criminal justice system?

A number of things, including that “collusive nature of business interests, which may form cabals and monopolies, fixing the highest price ‘which can be squeezed out of the buyers’” and the misplaced laissez-faire attitude of judges towards them.

You see, the business interests I’m talking about are the police, the prosecutors, the jailers, the correctional officers: arresting, prosecuting, and imprisoning people is big business in the United States and the poor are differentially targeted. In 2001, the Centre for Research on Globalisation presented The Prison-Industrial Complex and the Global Economy. There, Eve Goldberg and Linda Evans noted that,

Not so long ago, communism was “the enemy” and communists were demonized as a way of justifying gargantuan military expenditures. Now, fear of crime and the demonization of criminals serve a similar ideological purpose: to justify the use of tax dollars for the repression and incarceration of a growing percentage of our population. The omnipresent media blitz about serial killers, missing children, and “random violence” feeds our fear. In reality, however, most of the “criminals” we lock up are poor people who commit nonviolent crimes out of economic need. Violence occurs in less than 14% of all reported crime, and injuries occur in just 3%. In California, the top three charges for those entering prison are: possession of a controlled substance, possession of a controlled substance for sale, and robbery. Violent crimes like murder, rape, manslaughter and kidnaping don’t even make the top ten.

Like fear of communism during the Cold War, fear of crime is a great selling tool for a dubious product.

Goldberg and Evans do a good job of drawing the connection between capitalism’s globalized war on workers and the increasing prison populations, but that’s not the only tie between the collusive business interests and the corruption of our criminal justice system. The increasing War on Drugs discussed by Goldberg and Evans not only takes more poor people off the streets and places them into prisons where they can be put to work for lower wages than those paid even in the Third World, on the flip side, it funnels huge volumes of tax dollars into the pockets of corporate interests and correctional officers (and their union leaders). Politicians build their careers on the backs of the poor, soaking up donations to their political campaigns with ever-more-over-the-top promises to be “tough on crime.”

In fact, they aren’t tough on crime; they’re just tough on the poor.

In 2008, one out of every 100 Americans were in custody or on probation. The United States at that time had 5% of the world’s population, but 25% of the incarcerated population of the world. (Sascha Matuszak, “How the U.S. Prison System Has Become Big Business” (December 8, 2008) MatadorPulse.) Matuszak points out,

The upper class has the wherewithal to profit from the incarceration of the lower class, while the middle class supports any and all initiatives to increase funding for prisons, police, and correctional facilities because they are afraid of what might happen if convicted criminals are released early.

The following video points out that this incarceration and control of the poor by the rich — which the video correctly characterizes as essentially “slavery by the back door” — allows the United States to be more competitive with countries like Mexico.

Never fear, though, as the prison-industrial complex increasingly replaces the military-industrial complex (and as the police themselves become more militarized), the pool of prospective slaves is increasing to include more and more people, not all of whom are the traditional poor.

This necessitates an increase in the dismantling of constitutional rights, to ensure that police have the power to arrest and prosecutors have an easier time of prosecuting more and more people. After all, every business must have its raw materials and must be able to justify its continued existence by putting out more product. In this case, the raw materials are human beings; the products are “felons.”

So far, Americans have been more than willing to go along. Judges have looked the other way while constitutional rights are ignored.

As one example, I’m working on a case right now where a police officer stopped someone  because someone else — a “regular citizen” — called and complained that she thought he was speeding. She thought the guy was speeding; the officer, after spotting and very briefly following the car, never saw any illegal behavior whatsoever. (The officer testified to this under oath.) But after the officer illegally stopped the guy, he decided the guy was under the influence of alcohol.

The prosecution wants — and many people, including judges, might accept — that this is a good enough reason to throw him in jail.

But we have a Constitution of these United States of America which has usually, historically, been interpreted by the United States Supreme Court and other courts throughout our nation as saying that police officers have to have at least probable cause to believe that a crime has been committed, or is about to be committed, before they may stop or detain citizens. All those courts have said that finding this probable cause after the stop or detention does not justify the stop or detention. Furthermore, under California law, a police officer may not arrest someone for either an infraction or a misdemeanor unless he personally “sees” the crime being committed.1 So even if the woman who called the police officer actually witnessed a man speeding, the officer did not. He never could have given the guy a ticket, nor could he arrest him for a misdemeanor, such as reckless driving.

We’ll see what the judge says, but in today’s political climate, with its strong need to support the prison-industrial complex, I’m not willing to bet the courts are going to follow the law. I’ve seen too many cases where the judges bend over backwards to justify the arrest when they believe the individual is guilty. Gone are the days of “the cold neutrality of an impartial judge.”2

No, today, in the place of impartial judges and the rule of law, we have the collusive power of the business interests within the prison-industrial complex. The new mantra when it comes to eradicating our Constitution is “whatever the market will bear.” Wisconsin is getting ready to test that maxim in the civil courts. In the criminal courts, the fight for how much business interests can tear down the Fourth, Fifth, Sixth and Fourteenth — not to mention the Eighth — Amendments is all-but-over.

Whatever the market will bear. The highest price — our freedom — which can be squeezed out of the citizens.

How long before the market will bear no more?


Endnotes:

  1. I put the word “sees” in scare quotes because more recent case law has indicated that officers can use other senses — still no ruling that permits using their Sixth Sense — to support personal awareness that a crime has been committed. []
  2. The quote is attributed to Edmund Burke. See http://plato.stanford.edu/entries/burke/. []

About Rick Horowitz

Rick Horowitz is a criminal defense attorney with an extreme dislike of the criminal "justice" system which routinely ignores the Constitution, the Law, and the lives it ruins.

In addition to this blog, Rick also writes at Fresno Criminal Defense.