“In every crime, in every invasion of rights, from the most negligible breach of contract up to murder, there are always two parties (or sets of parties) involved: the victim (the plaintiff) and the alleged criminal (the defendant). The purpose of every judicial proceeding is to find, as best we can, who the criminal is or is not in any given case. Generally, these judicial rules make for the most widely acceptable means of finding out who the criminals may be. But the libertarian has one overriding caveat on these procedures: no force may be used against non-criminals. For any physical force used against a non-criminal is an invasion of that innocent person’s rights, and is therefore itself criminal and impermissible. Take, for example, the police practice of beating and torturing suspects – or, at least, of tapping their wires. People who object to these practices are invariably accused by conservatives of ‘coddling criminals.’ But the whole point is that we don’t know if these are criminals or not, and until convicted, they must be presumed not to be criminals and to enjoy all the rights of the innocent: in the words of the famous phrase, ‘they are innocent until proven guilty.’ (The only exception would be a victim exerting self-defense on the spot against an aggressor, for he knows that the criminal is invading his home.) ‘Coddling criminals’ then becomes, in actuality, making sure that police do not criminally invade the rights of self-ownership of presumptive innocents whom they suspect of crime. In that case, the ‘coddler,’ and the restrainer of the police, proves to be far more of a genuine defender of property rights than is the conservative.This passage means that, in Rothbard’s anarcho-capitalist world, the police from private protection agencies would be allowed “beat and torture” suspects “to find information,” and they would face no penalty or criminal charge for violence against such a suspect, as long as the suspect is found guilty.
We may qualify this discussion in one important sense: police may use such coercive methods provided that the suspect turns out to be guilty, and provided that the police are treated as themselves criminal if the suspect is not proven guilty. For, in that case, the rule of no force against non-criminals would still apply. Suppose, for example, that police beat and torture a suspected murderer to find information (not to wring a confession, since obviously a coerced confession could never be considered valid). If the suspect turns out to be guilty, then the police should be exonerated, for then they have only ladled out to the murderer a parcel of what he deserves in return; his rights had already been forfeited by more than that extent. But if the suspect is not convicted, then that means that the police have beaten and tortured an innocent man, and that they in turn must be put into the dock for criminal assault. In short, in all cases, police must be treated in precisely the same way as anyone else; in a libertarian world, every man has equal liberty, equal rights under the libertarian law. There can be no special immunities, special licenses to commit crime. That means that police, in a libertarian society, must take their chances like anyone else; if they commit an act of invasion against someone, that someone had better turn out to deserve it, otherwise they are the criminals.
As a corollary, police can never be allowed to commit an invasion that is worse than, or that is more than proportionate to, the crime under investigation. Thus, the police can never be allowed to beat and torture someone charged with petty theft, since the beating is far more proportionate a violation of a man’s rights than the theft, even if the man is indeed the thief.” (Rothbard 1998: 82–83).
Rothbard protests that private police cannot be allowed to “wring a confession” – even though there is a fine line between the two. In fact, with no ability to hold to account the activities of private protection agencies anyway, since they would be like private mafia groups, one can imagine what incredible abuses what develop in such a system: corrupt private police and private courts using torture and violence to quickly get a confession from suspects and “guilty” verdict.
Rothbard, M. N. 1998. The Ethics of Liberty, New York University Press, New York, N.Y. and London.