These readers speaks for many:
Jonah,
“If zookeepers, soldiers, or cops break the rules, punish them—criminally, civilly, or administratively.”
I agree in principle, but in practice not so much. I fear a situation where the cop doesn’t have to show he had real probable cause, only that HE BELIEVED he had probable cause. All cops being human, some would quickly figure out how to say “oops” and convince the judge they really, really thought they were right.
Punish them administratively? The supervisor puts a note in the officer’s jacket–not much punishment. Punish them criminally? Prosecuting them for burglary or the like doesn’t seem to fit. Punish them civilly? Making a wronged defendant pursue an expensive civil case won’t cost the offending officer any sleep.
The exclusionary rule, though not ideal, looks better than the alternatives. (I say this as a booster of law enforcement, married to an ex-chaplain in a city PD.)
And:
Jonah,
I agree with your…well, at least with your sentiment regarding who
really gets punished when we let the guilty go free. Consequently,
I’ve also always felt that so long as I had nothing to hide, I had
nothing to fear from the law.
That said, I’d like to hear your response to the following angle on the story.
Our legal system functions on an ‘adversarial’ basis, which means,
among other things, that those who bring suit must be “harmed” (or, as
in the case of the DA, a representative of the institution that
represents collectively those who are harmed). In cases of improper
search and seizure, the only way to dis-incentivize police misbehavior
(without having a separate court case) is to deny the police
request–which is admission of the evidence or, in the extreme,
prosecution altogether.
All the same, I think these legal theory things tend to get overworked
and (especially now) provide undue advantage to people who intend ill
and who are experienced system-gamers.
Me: First, for the record, I’m not sure I would throw out every law and rule that falls under the heading of the exclusionary rule, never mind throw them out over night. I think Rehnquist was right to come around to supporting Miranda, for example. So I’m open to practical arguments about what to keep and what to reform or chuck in the garbage.
But here’s the thing: it all depends on how you look at this issue of rights. I think the safeguards of the criminal justice system are there pretty much entirely to protect the innocent. If God could tell us who was guilty — and God, recall, is all-knowing — we wouldn’t have trials. We’d just ask God, “Who did it?” or “Is this guy guilty?” But we don’t have any such luck, so we have to set up a system that deters the police from invading the privacy or otherwise violating the rights of the innocent. To me, it’s all about protecting the people who didn’t do anything wrong. (Though of course, proportion should be kept in mind. Cops shouldn’t be able to kick down the doors of mattress-tag-rippers, even if they’re sure of the perp’s guilt).
Complaints from criminals who think they were caught “unfairly” mean nothing to me save in the sense that their complaint might reflect upon a weakness in the system to protect the innocent. If a rapist is caught “unfairly,” whatever my feelings about the cop who caught him may be, I will have exactly zero sympathy for the rapist and I will want him sentenced as severely as any rapist who was caught by the book.
But lots of people, particularly defense attorneys, get very passionate about fudging the distinctions between justice and process. This sort of thinking is omnipresent in the culture, particulary on TV. It reminds me of complaints from teenagers who think their parents have “no right” to punish them if the mother or father found out about a particular transgression by invading their kids’ privacy. If my kid shoplifts and I discover it by snooping around her room, the issue for discussion won’t be the unfairness of my snooping, it will be what the appropriate punishment for her crime will be. Likewise, if a cop lacks the right paperwork when he arrests a rapist, it makes no sense to me to say “Gosh, the rapist wasn’t caught fair and square, cut him loose and we’ll get him the next time.”
Now, of course, if a maximalist exclusionary rule is the only way to protect the rights of the innocent, then I’ll hold my nose and take it. But I’m unconvinced. For starters, that argument pressuposes that every modern, just, society has an exclusionary rule. I know no such thing (but would like to be educated on the subject). Moreover, from the early 1960s to the early 1990s the exclusionary rule got broader and broader. We’re we really a police state in the 1950s? For that matter, was the founders’ understanding of the 4th amendment wildly inadequate and unjust, desperately waiting until the early 20th century for improvement? Is every reform or downsizing of the exclusionary rule really a step toward tyranny? I don’t think so.
As an earlier emailer suggested, one check on police misconduct might be to have severe penalties for illegal or improper searches of innocent peoples’ homes or property. If a cop wrongly breaks down my door, I should be able to sue. If a cop wasn’t absolutely sure he had the right guy, he’d still have a strong incentive to have all the right paperwork.
Anyway, I think I’ve exhausted this topic for a while.