Interesting piece here in the Times that looks at how the legal system generally throws out ill-gotten evidence. That is, if you're a weed dealer and cops find you with, oh I don't know, say twenty pounds of the lime-green in your trunk, but they pull you over and search you on bogus cause, you could get off. I'm sympathetic to the prosecutors on this one, and I'd be more sympathetic if most of the cases in the Times piece weren't drug-related. My biggest problem is violent crime. But I could see how a killer could go free on the same sort of snafu. Any lawyers in the house? I'd ask Hilzoy, but she's guesting for Andrew this week.
UPDATE: Meh,"buying it" is a little strong, batojar. I said I'm "sympathetic to the prosecutors," and then I qualified that sympathy with my lack of enthusiasm for pursuing drug laws. In other words, I see the point--sort of. That said, I think there is a couple of issues here that could be unpacked. I'm not a lawyer, and so I'm completely open to one coming in here slapping me up some. So with that magnificent hedge, I proceed forward:
1.) As some of you know who read this blog, the issue of police power is not abstract to me. I love cops. But I think bad cops face too little punishment for making bad decisions that cost innocent lives. I don't think the criminal courts are the best place to handle that issue. But I believe that I cop who kills someone who's innocent should never carry a gun again, and probably shouldn't be a cop. It doesn't seem too much to trade your livelihood for an innocent life. More to the point, it just seems like if your shooting the good guys, you may not have the judgment necessary to be a police officer. I say all that to say, I'd probably be willing to see some bending when a cop screws up on a search, if I knew that actual rogue cops would be punished. Of course that issue is downplayed in the Times piece, some.
2.) I am curious as to how common all of this is. I mean, how big of a problem is this? In real terms how many cases are lost because of this? I didn't see any hard numbers in the Times piece. I'd want to know that. We could be talking about a very minor league problem.
The Beautiful Struggle: A Father, Two Sons, and an Unlikely Road to Manhood 
The exclusionary rule is a half assed penalty for cops who break the law, but its really the only penalty they will ever face. If there where other reliable legal or professional sanctions for illegal searches and seizures I'd be okay with it being more discretionary, but as it stands its the only thing stopping them.
If you're looking for background on the rationale for the exclusionary rule, I'd suggest Weeks v. United States, 232 U.S. 383 (1914), which first announced the rule or Mapp v. Ohio, 367 U.S. 43 (1961) (there's also a good wikipedia summary; check out the unexpected role Don King--yes, that Don King--plays in all this), which applied the rule to the states as well as the federal government. The basic idea is that violations of an individual's Fourth Amendment rights ought not to be used against that individual.
While I sympathize with the objections to the exclusionary rule, I have trouble seeing how an alternative would be any more satisfying. Should convicts be able to sue the police for damages from their jail cells? Should we prosecute cops for using a screwy warrant? Should we leave it to the bureaucracy of the police department to vindicate our Fourth Amendment rights? I think the exclusionary rule is probably the best way of actualizing the Fourth Amendment as an individually held right (rather than a regulation affecting police officers' job security). But I'm open to new ideas.
Well, if you are looking to up the the rate of folks getting pulled over for driving while black, and expand it into folks patted down and having their homes searched for the same offense, removing this barrier to "fishing expeditions," will help that cause.
This is a real protection for people against police abuses, if there is no penalty for violating the Fourth Amendment, police will just shred it to bits. Historically, this is certainly the case. If Police can't be even fired for KILLING innocent people, the idea of removing more checks on their power seems crazy to me. They have already made accommodations for "good faith" searches that were, in fact, improper.
FTFA: "Several justices have in recent years questioned whether the rule still makes sense in light of what they called the increased professionalism of the police..."
Professionalism, ummmmhmmm, THAT's what I want to depend on here. I'm actually kind of surprised you are buying this, given some of the other posts. I DO understand the frustration in having guilty people go free, but it's better than the reverse situation.
On a tangentially related note, did you see this?:
http://www.latimes.com/news/local/la-me-dna20-2008jul20,0,1506170,full.story
If the FBI is fighting this, thaey are not interested in convicting the guilty, just getting convictions. That's even worse at the local level.
I don't have time for a longer answer, hopefully someone else will. But this article is very misleading. The police and prosecutors pretty much do what they want in US. The exclusionary rule has so many holes that it has been swallowed by exceptions. There really aren't many "automatic" exclusions of anything. Everything has a balancing test, totality of the circumstances test, a good faith exception, automobile exception, reasonable suspicion exception, stop and frisk, etc. The article mentions evidence that was suppressed "in the last week of June." You should look into it. I am certain you'll be surprised.
I don't know that you can usefully compare America to other countries as far as criminal law goes. An issue too long to address fully, but can you point to another country where a group of citizens are treated by "law enforcement" the way blacks (and Hispanics) were and are in America?
I'm not a lawyer (I teach ethics), but I've always understood the idea to be: if the police can search your house without a warrant (or whatever), and still use the evidence in court, whyever would they bother with warrants at all? Why wouldn't they just say: "oh dear, we forgot to get a warrant before we searched you, with no reason that a judge would accept to think that you're actually guilty of any crime, but luckily we've found evidence of one once we got in where we had no legal right to be; off to jail with you!"
Well, one reason might be: they could face disciplinary charges if they just wantonly disregarded the warrant process. But (a) would they? We're relying a lot on police departments to take steps that might impede their efforts to get criminals. Also, (b) even if we could rely on police departments to always do the right thing and care deeply about the 4th amendment, disciplinary charges would only make sense if the officer knowingly disregarded the requirement for a warrant, not if s/he just made a mistake (assuming it's not a huge mistake.) But it's a lot harder to prove that someone failed to get a warrant on purpose than it is to prove that s/he just failed to get a warrant, period.
Faced with these thoughts, the courts said: look, we cannot actually protect the rights the Constitution guarantees unless we exclude from trial stuff obtained by violating it. Otherwise, it's as though we're just smiling at the police departments and saying: don't go violating anyone's constitutional rights!
It goes with the territory that there will be cases in which stuff is thrown out even though the person is flamingly guilty; cases that, if you look at them individually, make you think: what??? (Likewise, if we considered whether people are old enough to drive or vote on a case-by-case basis, there are some 14 year olds whom it would imho obviously be wrong to exclude. You look at them -- their obvious maturity and groundedness and decency -- and think: wtf makes us think this person shouldn't be allowed to vote, and George W. Bush should? General rules do that.)
But if you compare the exclusionary rule to its absence as a general policy, I think it's a lot better than the most obvious alternatives.
Which makes the fact that a-train is right all the more depressing.
Wow, I disagree entirely. Cops have an immense amount of power, including the power to murder you without consequence given the right circumstances. At the very least they should be reined in by social incentives meant to encourage them to follow the rules as closely as possible, given both their immense power and the incredible weight placed on the word of a cop by even by those who are meant to hold them accountable.
What's really more important, the preservation of the fourth amendment? Or busting one drug dealer? This is not a very compelling argument for why prosecutors should be able to use evidence acquired illegally.
I would be willing to bet that there are probably more cases in which bad searches have been admitted than there are cases in which a murderer has gone free as the result of a bad search being deemed inadmissable.
Wanted to add a few thoughts.
Why is it when law enforcement breaks the law it is a "technicality" that should be excused?
Also, "having evidence suppressed" does not equal "free to go." It only means that some evidence will not be allowed before a jury.
Is it really a pressing problem with the American Justice system that too many guilty people go free? Consider how many people have recently been exonerated by DNA evidence.
Also, check out the comments at the NYT site, some good points.
While I generally agree with you, let me play a little devil's advocate here with you Ta-Nehisi, with this quote:
"But I believe that I cop who kills someone who's innocent should never carry a gun again, and probably shouldn't be a cop. It doesn't seem too much to trade your livelihood for an innocent life."
Let's assume that the officer is in all other ways competent for a police desk job. Also assume that the death was indeed accidental, no questions about it. Can the shooter stay on the force with a desk job, or is his judgement so bad in this field that he should have nothing to do with justice.
Of course the shooter should be punished and I agree that he should never hold a gun again (as a cop, let's ignore a 2nd amendment fight). But to kick the officer out of the only livlihood he knows seems harsh. (I'm open to reparations and the like to try and create the fairest situation possible after a tradgedy.)
Moderation in all things. So yeah, that's not a hard and fast rule. There's probably even a scenario where a guy like that should be back out on the street--though I can't think of it right now. My greater point though is that criminal court is a bad place to resolve these cases. Even I don't believe that a cop who mistakenly kills an innocent should necessarily go to jail. But that's what I think about most accidental killings anyway.
There are cases where cops should be jailed--the Abner Louima case for instance. That wasn't a mistake at all.
Thanks Mr. Coates, that helps clear things up for me a bit.
Ta-Nehisi,
I think Radley Balko's blog The Agitator, http://www.theagitator.com/2008/07/20/the-phantom-exclusionary-rule/ had a very decent response.
Maybe you'll find this interesting:
http://www.copinthehood.com/2008/07/shoot-dont-shoot.html
It's a fun little game. Shoot the guys with the gun, not the guys with wallets and cell phones. You won't do it perfectly (and neither do cops).
When it's over it gives you a score and also the response time for armed and unarmed white and black men.
This post should be titled the consequences of not understanding politics. For a black man, who seems almost singularly obsessed with race & racism (and Obama), I'd expect you to understand the importance of having rules, however meager or ineffective, on the books which exist to provide a level of protection against police abuse. I would expect that belonging to a group whose historical oppression has been so closely linked to the criminal justice system, would shape your politics in some important ways. You really owe it to yourself to become more grounded politically, this position reflects poorly on you, especially considering that your understanding of racism is otherwise a strength. How does a 30 something year old man, who grew up in the hood, who has a friend that was murdered by the police, 'love cops'? You can't afford to have these positions on police and the criminal justice system, and if you have sons, that will become clearer to you with time.
"You really owe it to yourself to become more grounded politically, this position reflects poorly on you, especially considering that your understanding of racism is otherwise a strength. How does a 30 something year old man, who grew up in the hood, who has a friend that was murdered by the police, 'love cops'? You can't afford to have these positions on police and the criminal justice system, and if you have sons, that will become clearer to you with time."
Wow. Seriously, tell me how you really feel. Not sure what to say except that there are a lot of things that surely reflect poorly on me--I'm slightly overweight, I don't do the dishes every night, I don't read enough--but this opinion ranks pretty low on that list.
Still, if there's one thing I really need, it's protection from forming opinions that haven't yet been approved. Thanks for protecting me from my own thought process. Shall I e-mail you every blog-posting before I make it public? Maybe you could even stamp it "Approved By Other People Who Grew Up In The Hood." Sounds fair to me.