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Time to Consider Alternatives to a Politicized Criminal Justice System

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After a 395-day ordeal, the wrongfully accused Duke Lacrosse player Reade Seligmann spoke, “This entire experience has opened my eyes to the tragic world of injustice I never knew existed. 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.” What a sad, but true statement from this 21-year-old who unluckily now has wisdom far beyond his years.

Law is supposed to be impartial with a presumption of innocence, but as District Attorney Michael Nifong cruelly demonstrated, the criminal justice system is all too often used to advance political agendas at the expense of justice.

Although many want to characterize Nifong as a rogue prosecutor, we should examine why he acted as he did and why wrongful prosecution could go as long as it did. The answer stems from the incentives created by our politicized and government-run legal system. Unlike business people who must please their customers if they want to get business, law enforcement officials do not have to be concerned about customer service. Law enforcement officials are paid whether or not they committed in doing justice. They are often rewarded based on their total number of convictions regardless of whether the convicts are actually guilty. In high-profile cases, the law enforcement officials can use it as a way of advancing their career.

But why is law enforcement so political, and was it always this way? To answer these questions, a short history lesson might be in order.

Hundreds of years ago in England, law was not politicized at all. Law enforcement was actually private and it included dispute resolution systems that bore close resemblance to modern arbitration or mediation. This system was very different from the state's adversarial system of criminal prosecution. When an injustice occurred people would bring their dispute to private informal courts and after the informal court’s decision, the perpetrator had to pay compensation to the victim. The system of private law enforcement worked quite well, but after the Normans invaded England, the government realized they could use the system to collect revenue.

Government passed laws saying that in addition to compensating the victim, wrongdoers also had to compensate the king. To collect more revenue, governments classified more and more actions as violations of the “King’s Peace.” The king may not have been harmed in the slightest, but it was in the interest of law enforcement officials to say he was. These prosecutors were the precursors today's Michael Nifongs who use the criminal system not for justice but for personal gain.

Eventually the government prohibited private restitution, making all compensation go to the king. But when parties could no longer resolve disputes on their own, the system of private law enforcement disappeared. Only later have theorists come up with arguments to justify why a government monopoly over law enforcement is allegedly necessary. Today most people believe that the state needs to provide law enforcement and that non-government alternatives cannot exist. But the historical record in England, as well as ancient Ireland and ancient Iceland, shows that private alternatives to a politicized system of law enforcement did indeed exist for hundreds of years.

Modern America need not reverse the clock to adopt the system of England’s past, but we might learn how modern replacements to government monopoly law enforcement can be adopted today. From private security guards and private arbitration agreements, we can see that government monopoly over law enforcement is not the only way law can be enforced.

Imagine if law enforcement around Duke University were controlled by the University rather than the political system where justice is often determined by mob rule. It is hard to imagine any organization behaving as unjustly as the government law enforcement in this case. A customer service–oriented college that must compete for business would have more of an incentive to get to a just and agreeable solution rather than prosecute despite all evidence.

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 non-government alternatives do exist. The more we move away from a government monopoly, the less likely tragedies such as the wrongful prosecution of the Duke lacrosse players are to come about.

April 20, 2007