Rebirth of Reason


Defending Principles, Not Criminals
by Jonathan R

If in conflict, which is more important: the truth of a person’s criminality, or the way a police offer collects evidence thereof? Is genuine evidence of a robber, rapist or murderer’s actions too damning to be intentionally ignored, or does one’s constitutional right to be free of unreasonable searches and seizures oblige us to acquit a few[1] thugs? If, fundamentally, we value liberty over security, privacy over power—if we err on the side of the individual against the state—then we should prefer to free a guilty person rather than convict an innocent one.
The organizing principle of the U.S. Constitution (as distinct from its substantive principles) is its separation of powers. Although this phrase appears nowhere in the text, Article I vests certain “legislative Powers” in Congress; Article II vests the “executive Power” in the President; and Article III vests the “judicial Power” in the Supreme Court. Accordingly, when the police, as agents of the executive branch, disregard the terms of a search warrant or the warrant-issuing process altogether, a magistrate, as an agent of the judicial branch, can and should annul such usurpation.[2] Suppressing such illegally obtained evidence, otherwise known as the exclusionary rule, is a quintessential example of checks and balances.
But critics argue that this rule second-guesses police officers. Whereas I write this essay from a library in the proverbial ivory tower—where the biggest conflict is probably over ownership of a printout from a communal printer—cops spend their careers honing shrewdness in discerning criminality. “Unlike most sentient beings,” observes Edward Conlon, a detective in the Bronx and a writer for the New Yorker, “a police officer who hears gunfire is obliged to run toward it, and this profoundly unnatural act requires a backup that includes a significant amount of public trust.”[3] True, yet without the exclusionary rule, we second-guess the Constitution, whose Fourth Amendment squarely places a judge between the cop and the citizen. By relying on this detached and neutral third party, we sustain the rule of law.
Indeed, just as the American framers crafted the Constitution to protect citizens from an unbridled state, so they wrote the Fourth Amendment to protect us from overzealous officials—“the sort,” as the legal analyst Dahlia Lithwick puts it, “who seize upon the flimsiest pretext to knock down doors and throw people into leg irons in the name of fighting crime.”[4] A society’s commitment to justice is only as good as the restraints it keeps on such people. For the stubborn fact of human nature is that if you give someone a badge, sooner or later, he’s likely to exploit it. As Lord Acton understood, “Power tends to corrupt[,] and absolute power corrupts absolutely.”[5] Or, as Nietzsche warned in Beyond Good and Evil: “Whoever battles with monsters had better see that it does not turn him into a monster . . . [I]f you gaze long into an abyss, the abyss will gaze into you.” To wit, those in authority respect civil liberties less from fealty to a piece of parchment penned over 200 years ago than from the penalties they will suffer if they violate those precepts.
This is not to say that all cops are corrupt, but to note the enormous raw power an officer possesses in conducting a search. As Fourth Amendment scholar John Wesley Hall Jr. observes, wielding a search warrant and a gun, an officer can “forcibly enter your home. . . .  wake you from your sleep, roust you from bed, [and] rummage in your drawers and papers. . . . Even though the particularity clause of the warrant defines the scope of the search, the search, as a practical matter, will be as intense as the officer chooses to make it.”[6] Against such potential abuse, the exclusionary rule serves as a tolerable deterrent.
Still, doesn’t too much deterrence paralyze the police? To the contrary, after interviewing hundreds of officers and prosecutors, the American Bar Association found in 1998 that “the police . . . do not consider search and seizure proscriptions to be a serious obstacle.”[7] In fact, after more than 40 years bound by the rule (since Mapp v. Ohio [1961], which incorporated the Fourth Amendment into the Fourteenth), law enforcement officials are generally at ease with it. This is because, rather than erecting unnecessary barriers, the rule enhances professionalism.
Finally, many understandably object to a technicality that effectively acts as an escape clause for the guilty. After all, why should criminals enjoy special rights? First, because rights are indivisible; the rights of one man are the rights of us all. At root, the exclusionary rule defends a principle, not criminals. Second, the transition to tyranny always begins with the infringement of a given right’s least attractive practitioners—our drug-dealers, our pornographers, our homosexuals, our abortionists. But it precisely the vileness of their offense that makes a perfect test of one’s loyalty to the rule of law.

[1] On one hand, in 1978, the Comptroller General of the United States found that “evidence was excluded at trial as a result of Fourth Amendment motions in only 1.3% of the cases.” As quoted in [Unsigned], “Friend or Foe? Debating the Exclusionary Rule, Part I, Mapp v. Ohio,” Landmark Supreme Court Cases. <http://www.landmarkcases.org/mapp/exclusionary1.html>
A 1982 study by the National Institute of Justice reported that “0.79% of all felony complaints brought in the state of California over a three-year period were rejected for prosecution because of the exclusionary rule.” As quoted in <http://www.landmarkcases.org/mapp/exclusionary1.html>
A 1983 study by Thomas Davies estimated that between 0.6 percent and 2.35 percent of all felony arrests were lost because of the exclusionary rule. (The numbers are lower for violent crimes, and higher for drug offenses.) As cited in Jeffrey Rosen, “Search and Seize,” New Republic, March 27, 1995. <http://www.tnr.com/archive/1995/03/032795.3.html>
On the other hand, in a 1983 op-ed in the New York Times, Edwin Meese III wrote: “Steven Schlesinger, director of the Bureau of Justice Statistics, and the Federal National Institute of Justice have, respectively, estimated that up to 55,000 serious criminal cases, including one-third of all drug cases, are dropped each year because of the rule. What’s worse, an Institute study has found that, to a substantial degree, individuals freed by the rule are ‘those with serious criminal records who appear to continue to be involved in crime after their release.’ In fact, half of those set free were rearrested within two years.” Edwin Meese III, “A Rule Excluding Justice,” New York Times, April 15, 1983.
In a 1997 essay in Policy Review, Meese and Rhett DeHart noted that “[o]ne recent study estimated that 150,000 criminal cases, including 30,000 cases of violence, are dropped or dismissed every year because the exclusionary rule excluded valid, probative evidence needed for prosecution.” Edwin Meese III and Rhett DeHart, “The Imperial Judiciary… and What Congress Can Do about It,” Policy Review, January-February 1981. <http://www.policyreview.org/jan97/meese.html>
[2] Timothy Lynch, “In Defense of the Exclusionary Rule,” Harvard Journal of Law and Public Policy, Summer 2000.
[3] Edward Conlon, “Men in Blue,” New Yorker, September 29, 1997, p. 10.
[4] Dahlia Lithwick, “Ashcroft Likes to Listen,” Slate, November 15, 2001. <http://slate.msn.com/id/2058731/>
[5] John Emerich Edward Dalberg-Acton (First Baron Acton), Essays on Freedom and Power: Selected and with an Introduction by Gertrude Himmelfarb, Gertrude Himmelfarb (ed.) (U.S.: Free Press, 1948), p. 364.
[6] John Wesley Hall Jr., Search and Seizure, 2d ed. (Clark Boardman Callaghan, 1991), p. ix.
[7] As quoted in Jeffrey Rosen, “Search and Seize,” New Republic, March 27, 1995. <http://www.tnr.com/archive/1995/03/032795.3.html>

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