Mike Nifong

One of the more troubling aspects of the Duke non-rape case is the remedy which is available to society when someone in a position of great authority abuses that authority.

You might think that knowingly prosecuting a case where you knew the defendant was not guilty would itself be a crime. The FBI would come after you.

Turns out not to be true. There is no law against abusive prosecution. If the prosecutor decides he doesn't like you, and lies to the grand jury, and then lies to the jury, no law has been violated. The rules of the bar have been violated, to be sure. But the maximum remedy for such a violation is to be disbarred.

Sure, there are secondary kinds of laws, such as denying someone their civil rights. The problem with this kind of remedy is that it is dependent on political whim: if the sitting president and the sitting attorney general feel like it, they can act. If they don't feel like it, they are under no obligation to act. It's not like they're failing to enforce the law if they just look the other way.

Hopefully Nifong will come to a long prison term, but even more hopefully, we need to be making progress toward a state of affairs which more explicitly criminalizes what Nifong did: deliberately prosecute three young men he knew were not guilty, while denying them exculpatory evidence.