Gun enthusiast and Talmudic scholar, Joel Rosenberg, well-known around the blawgosphere as Jdog, raised a very good issue yesterday in a comment to my analysis of the Supreme Court’s Herring decision.
The limitation to reckless or deliberate conduct goes to its [the exclusionary rule’s] efficacy as a deterrent.
Yup. And that’s where I think that both you and the SCOTUS have it wrong, because I think they (explicitly) and you (implicitly) accept that it is a deterrent to reckless (official) conduct, rather than a motivation to code around the appearance thereof.
In 1914, the Supreme Court decided that the way to deter police from violating the 4th Amendment to the Constitution was to exclude evidence. As Jdog questions, is exclusion a deterrence? Was it ever? Is it still? Or is this just another bright dull opaque line test that we grab onto like a life-preserver because of precedent and its deep entrenchment in the myth of the law?
The problem, of course, is that the Constitution confers a right to the people, and a prohibition on government (which has since been determined to be more applicable to police than the rest of government, though no language to that effect exists in the amendment), but fails to inform us of what to do when then police violate the right.
In Weeks, the Supremes decided that the proper remedy for a violation was the exclusion of evidence. The reason for concluding that this remedy was the most appropriate was that, knowing that evidence unlawfully seized could not be used against a defendant, this would deter police from unreasonable searches and seizures. What Jdog doesn’t appreciate is that the Supreme Court justices, being former lawyers and all, can’t just come up with a rule, but have to provide a rationale for it. Hence, the deterrence argument.
Joel’s point (as I understand it) is that every time a “rule” is announced in the name of protecting constitutional rights, it only serves to begin a quest by law enforcement to figure out a way to circumvent, overcome, sidestep or take advantage of the rule, Miranda being the obvious example. It’s a damn good point.
We, on the criminal defense side, often act like Pollyanna when we urge new rules to cure extant problems, ignoring the issue Joel raises as if this next rule will be the one that can’t be beat. History shows that eventually, the government will find a way to beat all rules, if by no other means than the wealth of exceptions that compliant courts provide to elevate the value of order over law. Let’s face facts; this is the harsh reality that we’ve been fighting all along, though we are perpetually shocked by decisions (like Herring) that rationalize a way around a rule until we are left with rules that bear no nexus to their original purpose, a problem that I describe as a rubric without the rationale.
Unfortunately, many of us truly consider these decisions on a very superficial level. Granted, we are nuts and bolts types, unlike the law professors whose concerns tend to run much deeper but lack a pragmatic appreciation of how doctrine plays out on the streets and in the trenches. Many of the comments about Herring spoke to the death of the fourth, to the extent it’s alive at all, but really offered no insight at all. This tendency to curse the darkness isn’t a helpful way to arrive at better ideas.
So if the exclusionary rule a deterrent? It should be, from a doctrinal perspective. Does it work? Obviously not, since unreasonable searches and seizures happen routinely, a mere 94 years after Weeks. Clearly, we’re doing something very wrong, having failed so miserably to achieve the goal of governmental compliance with the 4th Amendment.
But I can’t think of a better remedy. Then again, being a lawyer, I am handicapped by my devotion to precedent.
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What Jdog doesn’t appreciate is that the Supreme Court justices, being former lawyers and all, can’t just come up with a rule, but have to provide a rationale for it.
Sure. But at least they could have had the simple courtesy to come up with a rationale that’s not testable, so we won’t know that they were wrong.
Take Plessy v. Ferguson. (Please.) If one is of the opinion that segregated schools are a good thing (err… I’m not), the dumbest thing a bunch of white guys in black robes could do is come up with a “separate but equal” rationale — and conclude, therefore, no harm is done by forced segregation — because that leaves the door open, a scant six decades later, for a bunch of other white guys in black robes to cock their collective heads to one side and notice that, well, it actually doesn’t work that way.
If they want to exclude evidence illegally obtained (and, from this amateur’s POV, evidence obtained by a government agent engaging in an unconstitutional search is unlawfully obtained, whether or not the agent a: failed to understand the subtleties because the borders are so twisty* or b: is dumber’n a box of rocks and didn’t know or care that he’d stepped over a bright line; admittedly, I’m pretty simpleminded), the untestable principle is also pretty simple: the government/people/polity must not profit from illegality, so exclude all the illegally-obtained stuff.
Pretty straightforward, and it avoids the testable question of whether or not the deterrence principle behind the exclusionary rule works.
As to the cops coding their way around restrictions, please (hey, it’s your blog; I’m just asking) let me just put in a dissent from the implication that that’s necessarily a bad thing: as a potential unwilling consumer of criminality, there are times where I, in my own selfish self-interest, want the cops to do just that. I don’t want them to violate Constitutional rights or abuse people, honest, but I do want them to use intelligence and experience to lawfully and properly get the folks who violate reasonable laws. (I’ll not lose a lot of sleep if some short-lobster recipient manages to skate, mind you, but when — as does happen, from time to time — a cop manages to find a clever, Constitutional, proper way to properly get evidence on, say, some serial axe murderer, that’s fine with me.)
My objection to that practice is when the coding-around isn’t proper — say, the “soft knock” or the “three-second rule” for doorkicking, which, to paraphrase a wise guy, remembers the rubric (can’t just go immediately kicking in doors, even with a warrant, absent special circumstances…) but not only forgets the rationale, but performs an improbable act upon it.
But I digress.
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* And, from my POV, there’s a lot of twisty, fuzzy little borders on search law.
When has any court been satisfied with a simple rationale, like “the government/people/polity must not profit from illegality, so exclude all the illegally-obtained stuff?” By the way, you are also a “consumer” of constitutional rights, and the remedy is intended to protect you, the non-criminal victim of violations, as well as the bad guy whose rights are used to test and protect yours.
Hey, I want the bad guy’s rights protected while he’s (I hope) being nailed, honest. (As I see them, that is. I suspect that you and I have some wide swaths of philosophical disagreements around confessions — I think you’re far too moderate, and that the rebbes had it right — as well as other matters.)
As to the first, well, yeah, but that’s a bug, not a feature.
Here in Oregon, our state supreme court has held, over the years, that the deterrence rationale is not the basis for our state exclusionary rule:
“This court, by contrast, explicitly has rejected the view that the Oregon exclusionary rule is predicated upon a deterrence rationale. . . Instead, this court has held that the Oregon exclusionary rule is a constitutionally mandated rule that serves to vindicate a defendant’s personal rights. In other words, the right to be free from unreasonable searches and seizures under Article I, section 9, also encompasses the right to be free from the use of evidence obtained in violation of that state constitutional provision.” State v. Hall, 339 Or. 7, 25 (2005).
This has led to a broader, and I would say somewhat more sane, application of the rule. Our exclusionary rule is based on returning a defendant to the position he would have been in had the illegality not occurred, not “instructing” police officers. It doesn’t lead them to get it right every time, but it seems like a more logical basis for the rule.
Bravo to Oregon for clearly establishing its own constitutional jrusprudence apart from the feds. New York was once that way, boldly asserting that it held rights more dearly than did our Supremes, and rejecting the federal exceptions and rationalizations. But that was then, and over the past decade plus, New York has come into the federal fold and adopted most of the federal exceptions as if we had no state Constitution at all.
It is a bug rather than a feature. Sometimes, in order to reach the beloved “consensus”, judges over explain what to anyone else would be a pretty simple issue. They are very much like the rebbes in that respect, with all-night debates at the Bene B’arak and no Red Bull anywhere to be found.
Rebbes have cooler names, though; the best a judge has done is “Learned Hand.” That just doesn’t stack up to “Ben Bag Bag” or “Ben He He”.
Oh please, Learned Hand is a way cool name. (I was about to make a truly tasteless joke here, but I restrained myself.)
History shows that eventually, the government will find a way to beat all rules, if by no other means than the wealth of exceptions that compliant courts provide to elevate the value of order over law.
Because politics trumps law and the public wants people punished. Guilt or innocence are a secondary consideration to them – someone, anyone must be punished. And despite pontification (and despite statues), the police and the judiciary are not blindfolded and prefer to go along. The very high level of wrongful convictions (some say as high as 1 in 6 in the case of jury or bench trials) is proof of this.