Our Ni­fong sys­tem of jus­tice and how to fix it

The Washington Times Weekly - - Commentary - ED­WARD STRING­HAM

Law is sup­posed to be im­par­tial, with a pre­sump­tion of in­no­cence. Un­for­tu­nately, as we learned from the case of the three for­mer Duke lacrosse play­ers who were ex­on­er­ated af­ter be­ing in­dicted last year on charges of rape and sex­ual as­sault, the crim­i­nal jus­tice sys­tem is all too of­ten used to ad­vance po­lit­i­cal agen­das at the ex­pense of jus­tice.

“This en­tire ex­pe­ri­ence has opened my eyes to the tragic world of in­jus­tice I never knew ex­isted,” said wrong­fully ac­cused stu­dent Reade Seligmann af­ter the 395-day or­deal. “If it is pos­si­ble for law en­force­ment of­fi­cials to sys­tem­at­i­cally rail­road us with no ev­i­dence what­so­ever, it is fright­en­ing to think what they could do to those who do not have the re­sources to de­fend them­selves.” Sad, but true.

Al­though many want to char­ac­ter­ize Dis­trict At­tor­ney Michael Ni­fong, who pur­sued the charges, as a rogue pros­e­cu­tor, we should ex­am­ine why he acted as he did and why such a wrong­ful pros­e­cu­tion could go on as long as it did.

The an­swer stems from the in­cen­tives cre­ated by our highly politi­cized le­gal sys­tem, which re­wards law en­force­ment of­fi­cials for high con­vic­tion rates, rather than met­ing out jus­tice. In­deed, in high-profile cases, law en­force­ment of­fi­cials fre­quently use a con­vic­tion to ad­vance their ca­reer.

But why is law en­force­ment so po­lit­i­cal and has it al­ways been this way? No.

Sev­eral hun­dred years ago, English law en­force­ment was a private sys­tem that in­cluded dis­pute res­o­lu­tion and closely re­sem­bled mod­ern ar­bi­tra­tion and me­di­a­tion. The sys­tem was very dif­fer­ent from to­day’s ad­ver­sar­ial sys­tem of crim­i­nal pros­e­cu­tion. When an in­jus­tice oc­curred, peo­ple would bring their dis­pute to private in­for­mal courts where the vic­tim was com­pen­sated by the per­pe­tra­tor.

Private law en­force­ment worked quite well un­til the Nor­mans in­vaded Eng­land and the gov­ern­ment de­cided to use the sys­tem to col­lect rev­enue, pass­ing laws pro­hibit­ing private resti- tu­tion and re­quir­ing all com­pen­sa­tion be made to the king.

Even­tu­ally, when par­ties could no longer re­solve dis­putes on their own, the sys­tem of private law en­force­ment dis­ap­peared. Only later did the­o­rists de­velop ar­gu­ments jus­ti­fy­ing why a gov­ern­ment mo­nop­oly over law en­force­ment is al­legedly nec­es­sary.

To­day, most peo­ple be­lieve the state needs to pro­vide law en­force­ment and that non­govern- ment al­ter­na­tives would be un­fair or in­ef­fec­tive. But the his­tor­i­cal record in Eng­land, as well as in an­cient Ire­land and an­cient Ice­land, shows non­govern­ment law en­force­ment agen­cies ex­isted for hun­dreds of years.

Mod­ern Amer­ica need not turn back the clock to adopt the sys­tem of Eng­land’s long-ago past, but we might con­sider how to­day’s gov­ern­ment mo­nop­oly could be re­placed or sup­ple­mented by private in­sti­tu­tions and mech­a­nisms.

It al­ready is hap­pen­ing, of course. From private po­lice forces and se­cu­rity guards to private ar­bi­tra­tion in­sti­tu­tions, Amer­i­cans in­creas­ingly look for al­ter­na­tives to the gov­ern­ment law-en­force­ment mo­nop­oly. In Cincin­nati, the Queen City Private Po­lice and Queen City Private Pa­trol pro­vide se­cu­rity for busi­nesses, schools and spe­cial events and po­lice es­corts for fu- ner­als. In Philadel­phia, Wack­en­hut Corp. guards the Lib­erty Bell, one our most im­por­tant na­tional trea­sures.

Imag­ine if Duke Univer­sity con­trolled law en­force­ment in the area around the univer­sity, rather than the city, county and lo­cal court sys­tem. It is hard to imag­ine any private or­ga­ni­za­tion be­hav­ing as un­justly as the gov­ern­ment did in this case. The univer­sity would have been guided in its be­hav­ior not only by the pur­suit of jus­tice and truth, cer­tainly the top con­sid­er­a­tions, but by the im­pact of the al­le­ga­tions on all of its con­stituen­cies — stu­dents, alumni, fac­ulty, the ath­letic com­mu­nity, donors and its neigh­bors in Durham.

Rather than the cir­cus at­mos­phere that pre­vailed un­der pros­e­cu­tor Mr. Ni­fong, who was run­ning for re-elec­tion, we prob­a­bly would have seen a sober ef­fort to ar­rive at the truth and mete out jus­tice as war­ranted.

Gov­ern­ment mo­nop­o­lies are not re­spon­sive to con­sumer needs in other ar­eas, so we should not ex­pect them to be re­spon­sive in the area of po­lice and courts.

Luck­ily non­govern­ment al­ter­na­tives do ex­ist. The more we move away from a gov­ern­ment mo­nop­oly, the less we are likely to see re­peat tragedies such as the wrong­ful pros­e­cu­tion of the Duke lacrosse play­ers.

Ed­ward String­ham, a re­search fel­low at the In­de­pen­dent In­sti­tute, Oak­land, Calif. (www.in­de­pen­dent.org) and pro­fes­sor of eco­nomics at San Jose State Univer­sity, is the ed­i­tor of “An­ar­chy and the Law:The Po­lit­i­cal Econ­omy of Choice,” which dis­cusses private al­ter­na­tives to gov­ern­ment law en­force­ment.

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