6.4 Ethics of Private Policing

The private policing sector has grown to take over the security and, by extension, the policing of public land. Private police are often seen on public land, providing security to access points of adjacent private land. In doing so, private police are acting on behalf of corporate interests, at times against the rights of civilians and potentially by using force. Loss prevention officers also act as private police who, in the interests of the corporation that employs them, restrict the liberty and freedom of citizens who are observed breaking the law. This leads to private police using force to apprehend citizens who have been identified as breaking the law. Ultimately, it can be argued, that the private sector should not engage in functions that will likely result in the use of force, which should be the exclusive domain of the state.

Cohen provides a practical description of the private policing sector by stating: “The state ceases to provide a particular service and it is then supplied by the private enterprises which are directly paid by the public as a customer” (Cohen, 1985, p.64). Cohen’s description does not include private sector agencies that augment existing and parallel police services.

Policing is a practice that may involve authorizing coercive power, and this power must be used responsibly and with accountability (Department of Criminology, 2006/7; Girodo, 2000). The very suggestion of allowing an under-regulated private sector body to police society therefore strikes at the very core of democratic statehood (Marks and Goldsmith, 2006; Pastor, 2003). The importance of accountability cannot be minimized as it ensures that policing services are provided in an ethical manner and that service providers act with integrity, thus lessening the potential for misconduct (Girodo, 2000). The accountability of the private sector and regulations enforcing that accountability are controversial issues and opinions on them are varied. However, some argue that allowing the state to enforce accountability on private security is intrusive and unnecessary (Rothbard, 1973).

Rothbard (1973) believes state regulation of private police is not necessary because the free market rewards companies that self-regulate. Private police would therefore be answerable to their clients and would “enforce whatever their clients are willing to pay for” (Rothbard, 1973, p.221). It follows, therefore, that private policing companies, which do not satisfy their clients, would soon find themselves out of business due to free market forces. In Rothbard’s view, regulation is provided by market forces (not the state), as the market will eliminate companies that do not produce.

The most obvious problem with Rothbard’s conception of privatization is his failure to address accountability and the goals of the client. Given that the client of a private police service is seeking security, the client would be content to see the civil rights of its adversaries diminished, if that meant more security (Davis et al., 2003). The private police’s goal would be to satisfy the client who pays for the services (U.S. Congress Senate Committee on Education and Labor, 1939). Rothbard assumes the client’s goals will be altruistic and that the client will be concerned that justice is served. With this in mind, it is useful to look at two examples: one of the need for the state to tightly regulate policing and the other of the consequences when such regulation is absent.

In 1939, the U.S. Government held an inquiry into the use of privately paid police to battle protests staged by the burgeoning labour movement. The conduct of the police was anything but altruistic (U.S. Congress Senate Committee on Education and Labor, 1939). The Committee on Education and Labour was formed as the result of murder committed by the private police while serving their clients, the embattled corporations. In its final report, the committee concluded that private police systems were “…created to meet the economic needs and desires of private interests. Because there is no accountability other than the criminal code, they cannot be considered as agencies of law and order” (U.S. Congress Senate Committee on Education and Labor, 1939, p.2). The committee recognized the need for police agencies to be accountable in order to protect the interests of the public at large and stated that the criminal code – the only mechanism to enforce accountability among private police – was insufficient to fulfill this purpose.

The consequences of lax regulation were more recently seen in South Africa, where private policing resulted in the murder of civilians suspected of being criminals (Baker, 2002; Shearing and Berg, 2006). The citizens’ group Mapogo-a-mathaamaga consisted of 70,000 members and was considered a formal, albeit voluntary, police organization dedicated to assisting public police with the investigation of crimes and punishing the transgressors (Shearing and Berg, 2006). Mapogo-a-mathaamaga members were citizens from all walks of life, and the group was formed as an altruistic response to the murder of business people by gangsters (Baker, 2002). Without any mechanisms in place to ensure their accountability, the Mapogo-a-mathamaga were allowed to do as they wished and act without regard to due process, with the end result being murder. Such abuses are certain to occur when accountability is not required of a policing agency.

McLeod (2002), a security company owner, views the private security business as having distinct advantages over public police. From the perspective of crime control, McLeod believes that private police are able to do things public police agencies cannot do because of the complex procedural processes required by their large bureaucracies and the restraints imposed upon them by the Canadian Charter of Rights and Freedoms (McLeod, 2002). These observations demonstrate that due process and the guarantee of statutory rights can only be delivered by a public police agency, which is governed by the state. In McLeod’s (2002) experience, the powers of private security may be at odds with policing in a democratic society.

The problem of private policing accountability is further illuminated by comparing private police agencies to public police agencies (Wakefield, 2003). Ceyssens (2000, p.62) outlines the nine principle forms of regulation that Canadian public police are bound by: the Criminal Code, the Canadian Charter of Rights and Freedoms, supervision by independent authorities, internal processes, public complaint processes, police services, human rights legislation, commissions of inquiry, and coroners’ inquests. In contrast, Canadian private police are bound only by the Criminal Code, market accountability, insurance restrictions, and minimal licensing requirements (McLeod, 2002). McLeod states that private-sector entrepreneurs’ greatest responsibility is not accountability to government, but rather the “requirement that I meet a payroll every two weeks” (McLeod, 2002, p.60). This standpoint reflects the primary shortcoming of private policing, which is its reliance on generating money versus accountability.

Though government regulation is at times ineffective, private police require more accountability to be on a par with public police (Davis et al., 2003). Stenning, as cited in Davis et al. (2003), states that the private sector is not only regulated by market pressures but also by civil liability, and that both compensate for the lack of state regulations and controls. While civil litigation may at times be a viable method to achieve accountability, the cost of legal representation is prohibitive for many citizens. More formal, codified sanctions and rules are necessary to provide citizens whose rights have been violated by private police or security with the proper means of redress.

State regulations and controls that ensure a measure of accountability are daunting and force public police to obey the law and guarantee the rights of citizens, suspects, and lawbreakers. In Canada, Britain, and the United States, public police are required to follow procedures to ensure suspects retain their rights. From a Canadian perspective, these rights, enshrined in the Canadian Charter of Rights and Freedoms, include the right to retain counsel upon arrest (Department of Justice, 2010). Any statement taken without that right being upheld is potentially inadmissible in criminal courts (Law Commission of Canada, 2006). Private police and security officers are exempt from the requirement to uphold the Charter (Hutchinson and O’Connor, 2005; Rigakos and Greener, 2000). Private police officers are therefore able to breach the Charter to gain statements resulting in a value system based not on integrity and accountability, but rather on profit and efficiency. Furthermore, market variances affect private sector companies and would ultimately dictate the allocation of resources (Johnston, 1992). The more lucrative populations can afford more services, while the poor would be left without adequate police service. Loader (1997) refers to this as a two-tier system, which is unbalanced by its very nature. A two-tiered policing system would deliver high-quality services to the affluent and lower-quality services to the poor.

Alleviating the public police’s stretched resources has been heralded as one of the benefits of expanding private policing. The reasoning behind this is that the private sector is able to augment public policing and thereby allow public police to concentrate on activities requiring specialization related to their function as a servant of the state (Davis et al., 2003). Marks and Goldsmith (2006) assert that the public’s acceptance of the private policing phenomenon is an acceptance of private security as an extension of the state. The public sees private police as a part of the policing continuum and believes they are able to relieve the police of some of their vital and complex duties (Marks and Goldsmith, 2006). McLeod (2002) recognizes the limits of the private security sector and cannot foresee the private sector ever taking over core policing; rather, he sees the private sector absorbing up to 60% of non-core policing. In an attempt to find a middle ground, the state has permitted private companies the ability to create private policing agencies at their own costs, with state-imposed conditions.

This complex model, known as hybrid policing, allows certain private organizations to obtain official status as police (Johnston, 1992). However, hybrid policing organizations have been successful as semi-private entities due to the state’s regulation of their powers. For example, B.C. Transit Police are paid by the transit authority to serve customers who use the transit system and to protect transit system property. Officers are governed by the Police Act, which governs all municipal public police in British Columbia (Transit Police, 2009). The state ensures some accountability of the hybrid policing service, but it does not ensure an equitable allocation of the service’s resources.

Unlike private police or hybrid police, public police are available to all segments of society and will respond to calls no matter where they originate. Police often have a strong presence in urban pockets of poor or disadvantaged citizens (Johnston, 1992). The ability of disadvantaged citizens to pay for private security is limited, and if they were not served by public police, their communities would be under-policed or policed by volunteer organizations.

To resolve this issue, Rothbard (1973) suggests that private police would be expected to voluntarily police these areas out of goodwill, ignoring the market costs and essentially providing welfare policing. He furthers his extreme libertarian argument by suggesting that those who don’t pay for security would not receive the service. Here, the poor and disadvantaged would be at the mercy of the goodwill of other private police companies and societies formed by police. Even without considering the earlier example of the Mapogo-a-mathaamaga, Rothbard’s perspective is problematic. He does not consider how unlikely it is for police officers to be convinced that they should volunteer a day of their time to police-disadvantaged areas or the likelihood of a company donating labour costs to police such areas. In addition, policing can be a risky occupation and to expect the private sector and volunteers to provide adequate policing for a specific area, at all hours, is unrealistic and certainly not possible for an extended time frame. Consequently, if private sector policing replaced the public police, the impact on underprivileged neighbourhoods would most likely be increased crime and violence, thus increasing the likelihood of the police using force.

In their assessment of underprivileged neighbourhoods in South Africa, Koonings and Kruijt (2004) found that the incidence and impact of violence in underprivileged neighbourhoods is disproportionate to that in other neighbourhoods. If we accept that disadvantaged neighbourhoods are more prone to violence, it follows that the use of force by policing agencies in these areas is likely to be more common than in affluent neighbourhoods. Private police without accountability should not investigate crimes of violence or be placed in a position where the use of force is probable.

Although private security officers have a right to protect themselves, this right should extend no further than the rights afforded to other citizens. The state should be the only body entitled to legitimately use force, and this entitlement should be granted only to designated state representatives (Walker, 2000). This notion is not only shared by proponents of public police, but also by libertarians such as Nozick (1974), who advocate that the use of force be restricted to the domain of the state. Nozick (1974) reluctantly draws this conclusion in spite of his desire for a minimalist state that adopts a privatization approach in all other areas of public service. He concedes that as a state becomes more powerful or extensive, it becomes more coercive and civil rights are increasingly stripped. However, he makes an exception to this rule with regard to the use of force:

A state claims a monopoly on deciding who may use force when; it says that only it may decide who may use force and under what conditions; it reserves to itself the sole right to pass on the legitimacy and permissibility of any use of force within its boundaries; furthermore it claims the right to punish all those who violate its claimed monopoly (Nozick, 1974, p.23).

The second half of Nozick’s statement reveals a second function of policing that should never be conducted by the private sector: the investigation of crimes where force was used. The state, as the sole legitimate purveyor of the use of force, should also be the sole investigator and punisher of those who do use force illegitimately. Prominent philosophers Thomas Hobbes and Jean Bodin, as well as Max Weber in the 20th century, have also professed the axiom of the state’s sole responsibility for the use of force to protect against internal and external threats. Walker (2000) adds that a “key defining feature of statehood is ultimate control over the legitimate use of force” (Walker, 2000, p.228). Surprisingly, Nozick (1974), who argues for minimal state involvement, also concedes that statehood requires those who use force without the consent of the state be punished in order to legitimize the use of force. Furthermore, it is imperative that the arms of the law which are not focused on a profit margin must investigate the illegitimate use of force that results in violent crimes. The investigations of such offences need to be tightly controlled, highly accountable, and ethical to protect the integrity of the state.

Private security companies not only lack accountability but also likely lack an effective ethical structure (Livingstone and Hart, 2003). Ethics are a necessary component of violent crime investigations because such cases too often present a temptation to tamper with the evidence. While public police organizations cannot always guarantee ethical conduct, rules and protocols are in place to maximize it (Livingstone and Hart, 2003). Ethical conduct is far less likely to be a concern for private organizations that have to answer to their paymaster. The goal of private companies is ultimately to make profit, and ethics act as an impediment to making profit. In his analysis of corporations, Alvarez (2001, p.107) notes that many companies “create cultures of amoral calculation in which values and ethics are less important than eliminating competition and increasing profits.” This practice of ignoring ethical considerations is unlikely in a public policing environment due to the mechanisms of accountability that public policing is subject to and the freedom from the need to increase profits.

The lack of an ethical code of conduct among the private sector is reflected in private policing agencies’ lack of commitment to ethical standards. Livingstone and Hart (2003, p.168) have observed that there is a need for an “ethical component and commitment on the part of the security sector that goes further beyond strict legality and the pursuit of profit.” Until the private policing sector is forced to adopt structured ethical constitutions and mechanisms to ensure accountability, it is not qualified to use force or be directly involved in the investigation of violent offences.