Citizen wrote:
Here is an interesting article about this case that I just came across. By Radley Balko, now at Reason.
http://www.reason.com/news/show/131311.html
In response to the Court's ruling in Herring, University of Tennessee law professor Glenn Reynolds
proposed a grand bargain to the law-and-order crowd: He'd give up the exclusionary rule, if they'd work with him to get rid of qualified immunity.
It's not a bad deal. In fact, it would be a good idea to get rid of qualified immunity for all government employees. They idea that getting a government paycheck somehow inoculates you from liability should you harm someone while on the job is antithetical to the principle of equality under the law. If anything, the government should be held to a higher standard.
proposed a grand bargain wrote:
THE OTHER DAY, JONAH GOLDBERG responded to my New York Post column on the Herring case:
One answer—really the only answer—you hear about why we should treat criminals with more respect is that it’s the only way to make government respect the rights of the innocent. I’m all for respecting the rights of the innocent, and I think police should be required to follow strict rules, have warrants, and all the rest. But I don’t see why cops who break the rules intentionally or unintentionally should be “punished” by having objectively guilty criminals let loose on society.
Well, this is the classic argument against the exclusionary rule, and it’s a pretty good one. The other classic argument against the exclusionary rule is that if you’re actually innocent — if the police search you unreasonably and don’t find anything — the rule does you no good because you’ve got nothing to exclude anyway.
These are good arguments and I’d be happy to scrap the exclusionary rule and return to the framing-era approach that put the constable at risk for personal liability whenever there was an unreasonable search or arrest, unless he had a warrant, in which case the magistrate who issued the warrant might be at risk if the warrant was improperly issued. But modern doctrines of official immunity — which are basically judge-made, and a result of “judicial activism” of the first order — make that impossible. There’s no constitutional basis for immunity on the part of police or their supervisors; it’s just something judges think is a good idea. Nonetheless, it’s not going anywhere — as part of my efforts to get something done about no-knock raids, I was recently told that, even in the Democratic Congress, it’s not going to be possible to do anything about official immunity.
Meanwhile, if you reward negligence, by letting cops who are negligent arrest people they’d otherwise be unable to, the cops — and, more importantly, their superiors, who might otherwise look bad if a guilty person is allowed to go free — wind up incentivized to be negligent. That increases the risk that innocent people will be subjected to unreasonable searches. In this imperfect world, the exclusionary rule is pretty much all we’ve got. But hey, if Jonah wants to join me in a campaign to get official immunity abolished or cut back, I’m ready.
I think there are two problems with that.
One, the exclusionary rule protects the innocent and guilty alike, whereas the "solution" proposed above wouldn't do much to protect the factually guilty -- I can't see a system where police are opened up to civil liability doing much good for anybody but white-collar criminals. And let's be real, with drug laws and the like (where after all the cops are "just doing their job", right? :quirky) it wouldn't be fair to make the cop civilly liable when the exclusionary rule could be applied, in most cases with no actual threat to society.
The "solution" proposed is fine for the law-and-order crowd, but some of us worry about our freedoms being taken away through ostensibly "legal" means as well. Once the law has declared us criminals for some or other
malum prohibitum offense -- which happens not just to nonviolent drug offenders but also victims of the BATFE -- we might wish we had the exclusionary rule to salvage what little protection we have left from our 4th Amendment rights.
Which brings me to my final point: it has always seemed to me that the real purpose of the exclusionary rule is to enforce 4th Amendment protections to every person regardless of believed or "factual" guilt, which is an end in itself designed to reify an implicit function of the 4th Amendment -- that is, not only the protection of the "factually innocent", but also the protection of the guilty whose only crime is an arbitrary
malum prohibitum offense, the guilt of which can only usually be proven by what would have once been considered unreasonable search procedures.
Perhaps this deal could be reasonably applied to the very specific acts of murder, rape, armed robbery, or other crimes where there is a tangible victim whose security or liberty was compromised -- as opposed to the state itself.
