Justice after Nifong

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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 restitution 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 nongovernment 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 funerals. 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.